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Carmony v. McKechnie

Supreme Court of Alaska

October 9, 2009

Wayne D. CARMONY, Appellant,
v.
Lonnie R. McKECHNIE, in her official capacity as Clerk of the Matanuska-Susitna Borough, Appellee.

James L. Walker, Palmer, for Appellant.

Nicholas Spiropoulos, Borough Attorney, Palmer, for Appellee.

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

OPINION

CARPENETI, Justice.

I. INTRODUCTION

The proponent of a municipal ballot initiative challenges a superior court ruling affirming the borough clerk's rejection of his petition application, as well as the court's award

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of attorney's fees. The clerk and the superior court rejected the petition on grounds (1) that the proposed ordinance was not enforceable as a matter of law, (2) that it related to administrative rather than legislative matters, and (3) that the proposed measure was a referendum and the application failed to comply with the statutory and constitutional requirements for a referendum petition application. The proposed measure would have provided that all land use planning, regulation, and platting ordinances adopted by the borough assembly after July 1, 2007 would expire as of the next borough election unless approved by the voters. We affirm the rejection of the application. The proposed measure was not enforceable as a matter of law in that it would have bypassed mandatory planning commission review of land use ordinances and would have thwarted the state legislature's delegation of land use authority to the municipal assembly. Furthermore, because the plaintiff was advancing statutory rather than constitutional claims, he was not shielded from attorney's fees under AS 09.60.010(c)(2) and we therefore affirm the award of attorney's fees to the Borough.

II. FACTS AND PROCEEDINGS

On July 31, 2007, Carmony and others submitted an Application for Initiative Petition to the Clerk of the Matanuska-Susitna Borough. The initiative, if approved by the voters, would have amended the Matanuska-Susitna Borough Code (MSB) by adding a new section MSB 1.25.011 as follows:

Ordinances adopting or amending land use regulations, platting regulations, or land use plans ... adopted by the assembly after July 1, 2007, expire immediately upon certification ... of the results of the first regular or special borough election held after adoption of the ordinance by the assembly, or the effective date of this ordinance, whichever is later, unless approved by a majority of the voters casting ballots in that election.

On August 13, 2007, the borough clerk rejected the application on three grounds: (1) the proposed ordinance was not enforceable as a matter of law, (2) it related to administrative rather than legislative matters, and (3) it was not an initiative but a referendum that failed to comply with the requirements for a referendum.

Carmony applied for judicial review by the superior court under AS29.26.110(b). Both parties moved for summary judgment. On March 24, 2008, Superior Court Judge Kari Kristiansen granted the borough clerk's motion for summary judgment, upholding the grounds cited in the borough's original rejection of the initiative, but rejecting the additional argument that the proposed legislation was also barred as special legislation.

The borough then moved for attorney's fees, and Carmony opposed this on the ground that he was a public interest litigant under AS 09.60.010(c)(2). The superior court found Carmony not entitled to public litigant status because his employer, Matanuska Electric Association (MEA), had an economic incentive to file the claim, and awarded attorney's fees of $1,633.50 to McKechnie. Carmony appealed both as to the rejection of the petition application and the award of attorney's fees.

III. STANDARD OF REVIEW

We review a grant of summary judgment de novo,[1] and review questions of law presented on appeal from a grant of summary judgment by adopting " the rule of law that is most ...


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