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Swetzof v. Philemonoff

Supreme Court of Alaska

February 13, 2009

Phyllis SWETZOF, in her capacity as Clerk of the City of St. Paul, Alaska, and the City of St. Paul, Alaska, Appellants,
v.
Anthony PHILEMONOFF and Nicolai Melovidov, Appellees.

Rehearing Granted March 31, 2009.

Page 472

Ronald L. Baird, Office of Ronald L. Baird, Anchorage, for Appellants.

Elisabeth H. Ross, Thomas F. Klinkner, Birch, Horton, Bittner & Cherot, Anchorage, for Appellees.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

MATTHEWS, Justice.

This opinion deals with the second of two proposed initiatives designed to force the City of St. Paul out of the business of selling electric power.[1] In an earlier order we held that the first proposal did not meet " the enforceable as a matter of law" requirement of AS 29.26.110(a)(4) [2] and authorized the city clerk to remove it from the ballot for the October 2008 election.[3] The second proposed initiative is challenged on the same basis, as well as on the ground that it does not " relate[ ] to a legislative rather than an administrative matter," as required by AS 29.26.110(a)(3).

Page 473

To set the context of this case we quote from our earlier order:

At issue in this case are decisions by Phyllis Swetzof, Clerk of the City of St. Paul, refusing to certify two proposed initiatives. The first proposal (Application I) stated:
The qualified voters of the City of Saint Paul who have signed the attached pages of this application for petition hereby request that the following measure be submitted to the qualified voters of the City of Saint Paul pursuant to Alaska Statute § 29.26.100.
AN ORDINANCE OF THE PEOPLE OF THE CITY OF SAINT PAUL PROVIDING THAT THE CITY OF SAINT PAUL SHALL NOT ENGAGE IN THE SALE OR DELIVERY OF ELECTRIC POWER TO RETAIL CUSTOMERS AND REQUIRING THE CITY TO ACTIVELY PROMOTE RENEWABLE ENERGY
BE IT ORDAINED BY THE PEOPLE OF THE CITY OF SAINT PAUL:
• Section 1. The City of Saint Paul shall not engage in the sale or delivery of electric power to retail customers and shall actively support renewable energy for sale to retail customers.
• Section 2. This ordinance shall take effect 120 days after certification of the election.
Swetzof refused to certify this proposal finding, among other reasons, that it did not meet the " enforceable as a matter of law" requirement of AS 29.26.110(a)(4) because the City could not discontinue retail electric service without applying for and obtaining the approval of the Regulatory Commission of Alaska (RCA).
The second proposal (Application II) was submitted in response to Swetzof's rejection of the first. It provided:
The qualified voters of the City of Saint Paul who have signed the attached pages of this application for petition hereby request that the following measure be submitted to the qualified voters of the City of Saint Paul pursuant to Alaska Statute § 29.26.100.
AN ORDINANCE OF THE PEOPLE OF THE CITY OF SAINT PAUL PROVIDING THAT THE CITY OF SAINT PAUL SHALL NOT ENGAGE IN THE SALE OR DELIVERY OF ELECTRIC POWER TO RETAIL CUSTOMERS.
BE IT ORDAINED BY THE PEOPLE OF THE CITY OF SAINT PAUL:
• Section 1. The City of Saint Paul shall not engage in the sale or delivery of electric power to retail customers.
• Section 2. This ordinance shall take effect 120 days after certification of the election and shall provide that the City [of] St. Paul shall take all necessary steps including obtaining regulatory approval to discontinue electric utility service.
• Section 3. This ordinance is subject to the Regulatory Commission of Alaska's approval of the City of Saint Paul's discontinuance of electric utility service.
When Swetzof refused to certify this proposal, the sponsors of both proposals, Anthony Philemonoff and Nicolai Melovidov, filed suit in the superior court challenging her rulings. The superior court found that Swetzof had erred and ordered her to certify both applications. Swetzof has appealed this ruling. An election will be held in the City of Saint Paul on October 7, 2008. At oral argument, counsel notified this court that, for reasons unrelated to this dispute, Application I but not Application II will be on the ballot.1 Swetzof requested an expedited hearing on appeal and this court has granted her request.

1 But whether Swetzof properly refused to certify Application II remains as an issue in this case. [4]

We ruled that the first proposal (Application I) was not enforceable as a matter of law because-assuming the initiative passed-the City could not simply stop selling electric

Page 474

power within 120 days after the vote. We pointed out that the City, as a public utility, would have to seek permission to sell the utility or discontinue service from the Regulatory Commission of Alaska (RCA), that proceedings Before the commission could be lengthy, and that the outcome of such proceedings would be uncertain:

Having considered the parties' briefs and argument, the court concludes that Swetzof correctly refused to certify Application I. Application I would not be enforceable as a matter of law because the City of Saint Paul could not simply stop selling or delivering electrical power to retail customers within 120 days after certification of the election. Instead, permission to discontinue or abandon electric service or to sell the utility to another entity would have to be sought and obtained from the RCA. Proceedings conducted by the RCA require notice to and an ...

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