Faipeas v. Municipality of Anchorage

860 P.2d 1214, 1993 Alas. LEXIS 102, 1993 WL 414194
CourtAlaska Supreme Court
DecidedOctober 15, 1993
DocketS-5605
StatusPublished
Cited by17 cases

This text of 860 P.2d 1214 (Faipeas v. Municipality of Anchorage) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1993 Alas. LEXIS 102, 1993 WL 414194 (Ala. 1993).

Opinions

OPINION

MATTHEWS, Justice.

I. FACTS AND PROCEEDINGS

On January 12, 1993, the Anchorage Municipal Assembly passed an ordinance which prohibited discrimination- in public employment on the basis of an individual’s sexual orientation. Soon thereafter a citizen’s group, Citizens Against the Homosexual Ordinance, began circulating a petition for a referendum on the ordinance. The group obtained more than the minimum number of signatures required and filed the petition with the municipal clerk. On February 22, 1993, the clerk certified that the petition contained sufficient signatures and met the requirements of law. Following this certification, the clerk prepared the following referendum proposition for the April 20, 1993 municipal election:

Should AO 92-116(S), which adds sexual orientation to the list of protected classes for the purpose of public employment or municipal contractors, remain law?
Yes [ ] No [ ]

Petitioners, Connie Faipeas and others (Faipeas) appealed the clerk’s certification decision to the superior court and sought a stay of the election, so far as it pertained to the referendum, pending final decision of their appeal. The superior court denied Faipeas’ motion for a stay. Faipeas then sought interlocutory review of this denial from this court. We granted their petition [1216]*1216for review and, on April 14, 1993, remanded this case to the superior court with instructions to grant a stay. Our order stated:

On consideration of the petition for review and the emergency motion for stay, filed on April 6, 1993,
IT IS ORDERED:
1. The petition for review from the order of the superior court denying petitioners’ motion for a stay pending resolution of their administrative appeal is GRANTED.
2. The order denying petitioners’ motion for stay is REVERSED and this case is REMANDED to the superior court with instructions to stay the municipal election scheduled for April 20, 1993, with respect to the referendum on Anchorage Municipal Ordinance 92-116(S), pending final determination on the merits of the appeal by the superior court.
3. a. Petitioners have made a clear showing of probable success on the merits with respect to their claim that the referendum petition presented the ordinance in a biased and partisan light. The title of the referendum petition is partisan and potentially prejudicial. It reads: “Referendum Petition to Repeal A ‘Special Homosexual Ordinance.’ ” While opponents of the ordinance regard it as giving special rights to homosexuals, proponents view it as merely adding sexual orientation to the list of other important personal characteristics and choices such as gender, religion, race, and marital status, which are protected from discrimination in public employment.
b. The petition is subject to the requirements adopted in Burgess v. Alaska Lieutenant Governor, 654 P.2d 273, 275-76 (Alaska 1982), that initiative and referendum petitions and ballot proposition summaries must be truthful and impartial. Although these requirements are not explicitly set out in the Anchorage charter or ordinance pertaining to initiatives and referendums, they are necessarily implied.
c. Since petitioners have made a clear showing of probable success on the merits with respect to one of their contentions, injunctive relief is appropriate. Rulings in election cases should, if possible, be made prior to the election in order to avoid needless expense and the shock to public expectations which would result if an election were overturned. Since we have concluded that petitioners have made a clear showing of probable success on the merits with respect to their claim concerning the partiality of the referendum petition, it is not necessary for us to examine whether a similar showing has been made with respect to petitioners’ contention that the ballot summary is not adequately descriptive.
4. This case is REMANDED to the superior court for further action consistent with this order. If it is not possible to reprint ballots for the April 20 election which do not contain the referendum, the court is authorized to order such other remedial measures as may.be appropriate.
5. The relief we have granted moots the emergency motion for stay.
6. An opinion will follow.1

This opinion sets forth more fully the reasons for our April 14th order.

II. STANDARD OF REVIEW

Two questions were decided by this court in granting a stay of the municipal election with respect to the referendum:

1) Did the referendum petition fairly and accurately describe the ordinance it sought to repeal?
2) Must a referendum petition in an election conducted by the Municipality of Anchorage fairly and accurately describe the ordinance it seeks to repeal?

[1217]*1217Concerning the first question, Burgess v. Alaska Lieutenant Governor, 654 P.2d 273 (Alaska 1982), controls. There the lieutenant governor’s summary of an initiative was challenged as inaccurate and biased. After noting that the summary was required to be accurate and impartial, we announced the applicable standard of review: “In conducting this inquiry, we will utilize a deferential standard of review.” Id. at 276. In a footnote we made it clear that the standard was not to be one where the court substituted its judgment for that of the lieutenant governor; instead, the lieutenant governor’s summary would be upheld unless we could not reasonably conclude that the summary was impartial and accurate. “The burden is upon those attacking the summary to demonstrate that it is biased or misleading.” Id. We applied the burden to Faipeas in this case.

Concerning the second question, this is an issue of law upon which we exercise our independent judgment. In doing so, we “adopt the rule of law that is most persuasive in light of precedent, reason, and policy.” Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

III. DISCUSSION

The referendum petition which the citizens’ group circulated bore the following title:

REFERENDUM PETITION TO REPEAL A “SPECIAL HOMOSEXUAL ORDINANCE”

In much smaller print, the petition read as follows:

In accordance with the provisions of Section 3.02, Article III of the Home Rule Charter for the Municipality of Anchorage and Section 2.50 Anchorage Municipal Code, we the undersigned qualified voters of the Municipality of Anchorage submit this Referendum Petition calling for the repeal of Anchorage Ordinance 92-116(S), initially passed January 12, 1993 (Amending Title 5 of the Anchorage Municipal Code). In particular, the undersigned request that the question:

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Faipeas v. Municipality of Anchorage
860 P.2d 1214 (Alaska Supreme Court, 1993)

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Bluebook (online)
860 P.2d 1214, 1993 Alas. LEXIS 102, 1993 WL 414194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faipeas-v-municipality-of-anchorage-alaska-1993.