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State v. Hamilton

Court of Appeals of Alaska

September 18, 2009

STATE of Alaska, Petitioner,
v.
David G. HAMILTON, Respondent.

Page 548

David L. Brower, Assistant Attorney General, Criminal Division Central Office, and Richard Svobodny, Acting Attorney General, Juneau, for the Petitioner.

Jane E. Sebens, Assistant City Attorney, Juneau, for amicus curiae City and Borough of Juneau (aligned with the Petitioner). Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Respondent.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

MANNHEIMER, Judge.

In 1971, the City and Borough of Juneau (a home rule municipality) enacted a traffic code. One of the provisions of that code, section 72.02.210(b), makes it unlawful for a driver to " accelerate a vehicle which is stopped, standing[,] or parked on or along a highway[,] or which is entering a highway, so rapidly as to unnecessarily cause the tires to squeal or spin" .

At the time this provision was enacted, the Alaska Administrative Code contained an identical traffic regulation (with an identical identifying section number): former 13 AAC 02.210(b). However, the Alaska Department of Public Safety repealed this state traffic regulation in June of 1979.

AS 28.01.010(a) declares that " [a] municipality may not enact [a traffic] ordinance that is inconsistent with the provisions of [Title 28 of the Alaska Statutes] or the regulations adopted under [that] title." The question presented in this appeal is whether the City and Borough of Juneau's traffic ordinance became " inconsistent" with state law-and thus became unlawful-by virtue of the 1979 repeal of the corresponding state regulation.

Before we address this point, we note that one might conceivably argue that, because AS 28.01.010(a) only forbids municipalities from " enacting" a traffic ordinance that is inconsistent with state traffic law, the City and Borough of Juneau may not have violated this statute-because the challenged Juneau ordinance was consistent with (in fact, identical to) state law when it was enacted.

In other words, the issue in this case arises, not from Juneau's " enactment" of the challenged ordinance, but rather from Juneau's failure to repeal the ordinance after the corresponding state regulation was repealed. However, the State does not argue that AS 28.01.010(a) allows a municipality to maintain an ordinance after it becomes inconsistent with state law due to a change in state law. We therefore assume, for purposes of this case, that AS 28.01.010(a) governs this situation. We turn, then, to the question of whether Juneau's tire-spinning ordinance is " inconsistent" with state law for purposes of AS 28.01.010(a).

The superior court acknowledged that it " [did] not have any information" as to why the Alaska Department of Public Safety repealed the corresponding state " tire-spinning" regulation, former 13 AAC 02.210(b). However, the superior court concluded that it did not matter why the Department of Public Safety repealed this regulation-because, regardless of the State's motivation for repealing the regulation, the determinative fact was that the challenged Juneau ordinance prohibits conduct that is no longer prohibited by state traffic law.

The superior court concluded that the policy behind AS 28.01.010(a) was to ensure the

Page 549

uniformity of traffic laws throughout the State of Alaska. The court therefore ruled that a municipal traffic ordinance should be deemed " inconsistent" with state law whenever the ordinance proscribes conduct that is not proscribed by state traffic law. Based on this reasoning, the superior court declared that the Juneau " ...


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