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Good v. Municipality of Anchorage

Court of Appeals of Alaska

September 27, 2019

MAE LU GOOD, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, Appellee.

          Appeal from the District Court, Third Judicial District, Anchorage, Trial Court No. 3AN-16-08889 CR Douglas Kossler, Judge.

          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.

          Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

          OPINION

          HARBISON JUDGE

         Under AS 28.01.010(a), a municipality may not enact an ordinance that is inconsistent with the provisions of Title 28, the portion of the state code that sets out Alaska's motor vehicle laws. In 1983, the legislature enacted a carve-out to this provision, allowing municipalities to adopt an ordinance providing for the impoundment or forfeiture of a motor vehicle when a defendant commits certain offenses, even if this impoundment or forfeiture is harsher than the penalty for a corresponding state offense.[1]

         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 AS 28.01.010(a), this new provision - AS 29-.25.070(g) - is not limited to motor vehicle laws. The new provision precludes a municipality from imposing a greater punishment for a violation of municipal law than the punishment imposed for a comparable state crime with similar elements.

         The question we confront in this appeal is whether this new provision in Title 29 impliedly repealed the statutory carve-out in Title 28 that has historically permitted municipalities to impose harsher impoundments or forfeitures for certain delineated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 AS 29.25.070(g), the new Title 29 provision, which prohibits municipalities from imposing a "greater punishment" for a municipal crime than that imposed for a comparable state crime.

         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, AS 28.35.030. But the state statute does not contain an impoundment provision - that is, AS 28.35.030 does not require a judge to impound the defendant's vehicle for a first-time offense. Although the state statute authorizes a judge to forfeit the vehicle used in the commission of the offense, forfeiture is not required.[4]

         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 AS 29.25.070(g).

         In response, the Municipality argues that the carve-out in Title 28 for municipal impoundments and forfeitures, AS 28.01.015, survived the enactment of AS 29.25.070(g). The Municipality contends that because AS 28.01.015 specifically authorizes municipalities to adopt impoundment or forfeiture ordinances that are more stringent than applicable provisions under state law, the impoundment in this case was proper.

         The statutory framework relevant to this appeal

         Alaska Statute 28.01.010(a) prohibits municipalities from enacting ordinances that are inconsistent with the provisions of Title 28. But AS 28.01.015 exempts impoundment and forfeitures from this uniformity requirement. It provides:

(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 to AS 28.35.030 or 28.35.032...
(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 AS 29.25.070(g) in 2016, the mandatory impoundment and forfeiture provision set out in AMC 09.28.020(C)(5) was clearly authorized by the carve-out provision of AS 28.01.015 that we have just quoted.[5] But she argues that the enactment of AS 29.25.070(g) invalidated the carve-out.

At the time of Good's sentencing, AS 29.25.070(g) provided:
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, AS 28.01.015 is arguably at odds with AS 29.25.070(g). Accordingly, we must determine whether the enactment of AS 29.25.070(g) constituted an implied repeal of AS 28.01.015.

         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 ...


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