Anderson v. Municipality of Anchorage

645 P.2d 205, 1982 Alas. App. LEXIS 284
CourtCourt of Appeals of Alaska
DecidedMay 21, 1982
Docket5318
StatusPublished
Cited by6 cases

This text of 645 P.2d 205 (Anderson v. Municipality of Anchorage) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Municipality of Anchorage, 645 P.2d 205, 1982 Alas. App. LEXIS 284 (Ala. Ct. App. 1982).

Opinions

OPINION

BRYNER, Chief Judge.

On December 27, 1979, Bette M. Anderson entered a plea of nolo contendere in the district court to a charge of driving with a blood alcohol level of 0.10 percent or more, in violation of former Anchorage Municipal Ordinance (AMO) 9.28.030.1 Upon her plea, [207]*207Anderson was convicted and sentenced to serve ninety days in jail, with all but ten days suspended, and to pay a fine of $500. As an additional part of the sentence, Anderson’s driver’s license was suspended for one year. Anderson appealed to the superi- or court. The superior court subsequently affirmed Anderson’s sentence, and this appeal followed.

On appeal to this court, Anderson asserts, as she did below, that the sentence imposed by the district court following her conviction of the municipality’s 0.10 percent ordinance was unlawful. Having considered the arguments of the parties, we have concluded that the sentence received by Anderson was prohibited by Alaska law;2 accordingly, we reverse.

We believe that the issue of the lawfulness of Anderson’s sentence is governed by AS 28.35.230, the pertinent provisions of which state:

Penalty for violations of law, regulations, and municipal ordinances, (a) It is a misdemeanor for a person to violate a provision of this title unless the violation is by this title or other law declared to be a felony or an infraction.
(b) A person convicted of a misdemeanor for a violation of a provision of this title for which another penalty is not specifically provided is punishable by a fine of not more than $500, or by imprisonment for not more than 90 days, or by both. In addition, the privilege to drive or the registration of vehicles may be suspended or revoked.
(c) Unless otherwise specified by law a person convicted of a violation of a regulation promulgated under this title, or a municipal ordinance regulating vehicles or traffic when the municipal ordinance does not correspond to a provision of this title, is guilty of an infraction and is punishable by a fine not to exceed $300. [Emphasis added.]

Since Anderson was not convicted under Title 28 of the Alaska Statutes, the sentencing provisions of AS 28.35.230(a) and (b) are inapplicable to her. In determining whether Anderson’s sentence was permissible, we must therefore focus upon the provisions of AS 28.35.230(c) as a starting point. By their plain terms, these provisions restrict the maximum penalty for persons convicted of municipal ordinances regulating vehicles or traffic to a fine of $300. Two exceptions to the $300 limitation are carved out by subsection (c): first, the $300 restriction is inapplicable if a different penalty is “otherwise specified by law”; and, second, the restriction is similarly inapplicable when a person is convicted of a municipal ordinance which “corresponds” to a provision of Title 28 of the Alaska Statutes.

In seeking to uphold the sentence imposed against Anderson, the municipality advances a two-fold argument with respect to the language of AS 28.35.230(c). It is contended that, under subsection (c), the term “law,” as used in the phrase “unless [208]*208otherwise specified by law,” is intended to include municipal ordinances. Thus, the municipality asserts that the penalty provisions contained in former AMO 9.28.030(B) must be deemed to be a provision of “law” as that term is used in AS 28.35.230(c). Alternatively, it is contended that former AMO 9.28.030, should be held to “correspond” to the provisions of former AS 28.-35.030, the section of Alaska’s Motor Vehicle Code which governed the offense of operating a motor vehicle while under the influence of intoxicating liquor (OMVI) at the time Anderson’s offense was committed.3

We consider, first, the municipality’s contention that the term “law,” as used in AS 28.35.230(e), must be read to include municipal ordinances. Both the municipality and the appellant, in arguing this point, correctly observe that the scope of the term “law” must be determined by the context in which it is used. However, before turning to the specific context of AS 28.35.230(c), we find it helpful and of some guidance to consider the manner in which the term “law” is used in several more generalized areas of the Alaska Constitution, Alaska Statutes, and pertinent Alaska case law.

Under the provisions of article XII, section 11, of the Alaska Constitution, the term “by law” is used interchangeably with the term “by the legislature.” 4 More specifically, useage by the Alaska Constitution of the term “law” in delineating the respec-five powers of state and local governments provides a clear indication that “law” is a term intended to refer to the legislative powers of the state, and not those of political subdivisions such as the municipality. Thus, article X, section 11, of the Alaska Constitution states:

Home rule powers. A home rule borough or city may exercise all legislative powers not prohibited by law or by charter.

As Anderson correctly points out in her argument on appeal, if the term “law” were deemed to include municipal ordinances, the provisions of article X, section 11, would be rendered nugatory, since any home rule borough or city would then be authorized, by the mere passage of ordinances, to confer upon itself a virtually limitless array of powers, without regard to the provisions of the Alaska Statutes.

We find further guidance in Title I of the Alaska Statutes, which encompasses the general provisions dealing with codification of the state’s legislative enactments. AS 01.05.0115 is indicative of the legislature’s intent to confine the term “Alaska law” to the legislative enactments codified in the Alaska Statutes. The manner in which the term “law” has been used in Alaska Supreme Court decisions is consonant with the use of that term within the Alaska Constitution and AS 01.05.011. For example, in Jefferson v. State, 527 P.2d 37 (Alaska 1974), the court was called upon to deter[209]*209mine the scope of legislative authority conferred upon home rule cities and boroughs by article X, section 11, of the Alaska Constitution. It concluded that the terms of article X, section 11, permitting local governments to exercise authority “not prohibited by law or charter” must be liberally construed and literally applied. Thus, the court held that home rule cities and boroughs are authorized to enact ordinances inconsistent with state law in the absence of a specific prohibition. In so finding, the court in Jefferson stated:

The prohibition must be either by express terms or by implication such as where the statute and ordinance are so substantially irreconcilable that one cannot be given its substantive effect if the other is to be accorded the weight of law.

Jefferson v. State, 527 P.2d at 43 (footnote omitted). It is manifest that the distinction between “law” and municipal ordinances is implicit in the phrase “if the other [the ordinance] is to be accorded the weight of law.”

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Anderson v. Municipality of Anchorage
645 P.2d 205 (Court of Appeals of Alaska, 1982)

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Bluebook (online)
645 P.2d 205, 1982 Alas. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-municipality-of-anchorage-alaskactapp-1982.