The attorney for a citizen’s initiative in Sitka is unsure what the city has to gain by further attempts to block a public vote on land sales.
Juneau lawyer Joe Geldhof represented Sitkans for Responsible Government in their efforts to put a voter initiative on the ballot in 2008. Sitka’s municipal attorney refused to certify the initiative, and the Superior Court ultimately backed her up.
Late last month, Geldhof and Sitkans for Responsible Government won a reversal in the Alaska Supreme Court. The justices gave the initiative the green light, but also remanded the case back to the Sitka judge to review some apparent conflicts in Sitka’s code.
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Read the full Alaska Supreme Court ruling here.
Read a detailed, written response from Sitka municipal attorney Theresa Hillhouse.
Listen to Hillhouse’s remarks to the Assembly on May 8, 2012.
At the last assembly meeting (Tue 5-8-12), municipal attorney Theresa Hillhouse offered her first public explanation of the Supreme Court ruling.
Hillhouse’s remarks were broadcast live on both radio and television, for about eight minutes.
Listening to her, you would not come away with the impression that the city’s lawyers suffered much of a setback in Alaska’s highest court.
“The courts reversed the Superior Court decisions, finding that, as far as the language, it wasn’t as confusing as some of the initiatives, it wasn’t as confusing as some of the initiatives that come up to the Supreme Court. As far as the process, they noticed that Sitka does have some conflicting sections – and to take a look at that and clean it up ourselves.”
“They lost, and they lost bad…”
Joe Geldhof represents Sitkans for Responsible Government.
“I think any fair reading of the decision by the Alaska Supreme Court in this case is that the City and Borough of Sitka, on two substantive, important issues – they got croaked.”
Those two “substantive issues” were that the petition’s language was confusing and misleading, and that the initiative was “unenforceable and contrary to law.” The Supreme Court leaves little room for disagreement about either of those two points. The justices wrote:
The petition clearly states its general purpose to bring the treatment of Sawmill Cove Industrial Park real property under the same rules that govern all other city property, and then it sets out the specific changes to Sitka law that will accomplish this purpose. The petition does not seek to persuade voters with partisan language, nor is it grammatically unclear such that voters could not reasonably understand what conduct they are authorizing. The petition language is neither confusing nor misleading.
In her explanation to the assembly and to the public, Hillhouse says the remand is a chance for the Sitka Superior Court to now evaluate the case on its merits.
“What this case deals with is do the voters vote on an issue of municipal assets. In this case it dealt with the Sawmill Cove property, any sales or lease of certain value – do the voters get to approve those sales?”
Hillhouse, in her reading of the Alaska Constitution, says no. She believes the transfer of municipal assets – even the sale of large tracts of land – is an appropriation, and a prohibited use of the citizen initiative. The constitution also bans the use of citizen initiatives for creating courts, for instance, and legal jurisdictions.
But is approving or disapproving the sale of land really an “appropriation”? Geldhof doesn’t think that’s what the framers had in mind.
“Well, there is an important point there. Because Alaska’s Supreme Court has been diligent since statehood in making sure that a bunch of folks can’t get together in a saloon and come up with a local, or even statewide initiative, that says, Let’s give ourselves a big pile of money. Let’s give ourselves a whole bunch of land.”
Geldhof suspects the city’s legal team is missing the point.
“You can’t just give property to your chums and pals and everyone else because you got the votes. You can’t just start allocating resources. That’s not what Mr. Litman and the other folks in Sitka trying to put this before the electorate are trying to do. It’s exactly the opposite.”
A couple of weeks before the Supreme Court decided in favor of Sitkans for Responsible Government, the justices ruled against a group in Kenai called the Alliance of Concerned Taxpayers, who wanted to give voters the authority to ratify capital expenditures of over $1-million dollars.
Hillhouse has sent a one-page letter to Sitka Superior Court Judge David George, drawing his attention to the Kenai case.
Geldhof says if the city wants Judge George to consider how the Kenai ruling bears on the Sitka case, they should argue their point publicly.
“I am not going to respond – nor should I – to a letter to a judge that cites a couple of cases and says, You know, these cases are controlling and you don’t have any option, go ahead and dismiss this case. I think it’s much more appropriate, and I have asked Judge George on behalf of the folks in Sitka who brought this case, to set out a scheduling hearing and if Ms. Hillhouse and the lawyers from Anchorage want to brief whatever points they think are relevant to the Superior Court, then they should have that chance.”
Lastly, there’s this: Sitka General Code already requires voter ratification of municipal land sales worth over $500,000 – everywhere but Sawmill Cove Industrial Park. The proposed voter initiative would have simply put city property at Sawmill Cove Industrial Park under the same rules.
Hillhouse wants the assembly to interpret the current Sitka law allowing voter approval of large land sales to mean advisory votes. Based on her definition of a land sale as an appropriation, she thinks the voter ratification in current Sitka code is unconstitutional, and unenforceable… if it were ever to go to the Supreme Court.
“Particularly in the last few years the court has been coming down hard on the appropriations issue, and very much narrowing it. And making clear, especially for appropriations issues, that is something that rests with the assembly and is not to be done by the voters.”
Geldhof is not surprised that the issues of whether a large land sale is an appropriation, or whether long-standing Sitka code is enforceable, are confusing. In fact, he’s quite blunt.
“There seems to be an element of intentionally trying to confuse the assembly.”
Geldhof says the most unfortunate element of this case is that it is pitting the Sitka assembly – who represent the public – against the public. He thinks any constitutional test would ultimately favor the people’s rights to control their government.
“What’s at the heart of this is not legal, technical issues, really. What’s at the heart of this matter is how do you allocate power between the citizens and their elected representatives, and maybe the broad question of: Who’s really running Sitka? The citizens, the assembly, or the municipal attorney?”
Geldhof’s request for a scheduling hearing in the case of Sitkans for Responsible Government vs. City and Borough of Sitka is pending.
