Liberati v. Bristol Bay Borough

584 P.2d 1115, 1978 Alas. LEXIS 698
CourtAlaska Supreme Court
DecidedSeptember 29, 1978
Docket3365
StatusPublished
Cited by31 cases

This text of 584 P.2d 1115 (Liberati v. Bristol Bay Borough) 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
Liberati v. Bristol Bay Borough, 584 P.2d 1115, 1978 Alas. LEXIS 698 (Ala. 1978).

Opinions

OPINION

MATTHEWS, Justice.

Appellants1 challenge a Bristol Bay Borough ordinance imposing a three percent (3%) tax on the sale of all raw fish caught within the borough.2 They contend that the ordinance is invalid because:

1. proper notice of a public hearing prior to the enactment of the ordinance was not given;
2. the tax is a severance tax on a natural resource and the power to levy such a tax is reserved exclusively, to the State by Article VIII of the Alaska Constitution;
3. municipal taxation of raw fish has been preempted by the State; and
4. assuming the tax to be a sales tax, it is on a specific commodity and only a general sales tax may be imposed by municipalities.

The superior court, in a carefully reasoned decision, rejected each of these arguments and entered summary judgment for the borough. We affirm.

I

AS 29.48.150(a)3 prescribes ordinance enactment procedures which must be followed by municipalities. Before an ordinance is enacted there must be a public hearing. At least five days before the public hearing a summary of the ordinance must be published along with a notice of the time and place for the public hearing. If there is a newspaper of general circulation distributed within the municipality, the notice must appear at least once there, and if there is no such newspaper, the notice must be posted in three public places within the municipality.4

[1118]*1118In this case the proposed ordinance was set for public hearing on February 19, 1973. A notice of public hearing was published in the Anchorage Daily News on February 6, 1973.5 The notice summarized the proposed ordinance as:

providing for levy and collection of sales tax of three percent (3%) of the sales price'on all fish and fish eggs which are harvested within the boundaries of the Bristol Bay Borough.6

On the hearing date, which was also the next regular meeting of the borough assem - bly, the ordinance was called for discussion. Representatives of a salmon cannery appeared and commented on the ordinance; other citizens discussed it as well. Action on the ordinance was then postponed to an unspecified subsequent meeting. At its March 13, 1973 meeting the assembly discussed the proposed ordinance further and set April 2, 1973, as the date for a new public hearing. There was no newspaper publication of the April 2 hearing, although notice was posted in public places within the borough. At the April 2 meeting the ordinance was passed by the borough assembly. A special election was then set for April 27, 1973, proper newspaper notice of the election was published, and the ordinance was passed by the voters.

What must take place at a public hearing is defined by AS 29.48.150(a).7 Copies of the ordinance must either be read or be available to those present, and the assembly must hear all those wishing to be heard. Appellants do not contend that copies of the ordinance were not available or that all persons wishing to be heard were not heard at the February 19 meeting. There is a presumption that proceedings of the governing body of a municipality have been conducted in accordance with law.8 That presumption has not been rebutted here. We therefore conclude that a public hearing took place on February 19.

The next question is whether the further public hearing of April 2 was needed. If it was not, then the failure to properly publish notice concerning it is legally irrelevant.

After the February 19 meeting and before April 2 the ordinance was amended. In its original form the ordinance applied to all red salmon, the major species harvested in the borough, and red salmon eggs; as amended it applied to all raw fish. The other amendment pertained to the responsibility as between buyer and seller of fish for the collection and payment of the tax. The initial ordinance placed the obligation to pay and collect the tax on the buyer, while leaving the seller’s responsibilities ambiguous and poorly defined.9 The [1119]*1119amended ordinance clarified the responsibilities of buyer and seller, placing the obligation to pay the tax on the seller and the obligation to collect and retain the tax on the buyer.

AS 29.48.150(a) contemplates that an ordinance may be amended after public hearing without the necessity of a new hearing. The statute provides: “after the hearing, the assembly or council shall consider the ordinance and may adopt it with or without amendment.”10 Only those changes to an ordinance which are so substantial as to change its basic character require that the public hearing process be repeated.11 The amendments in question fall far short of that standard. They are squarely within the descriptive summary of the ordinance published on February 6.12 They do not, as appellants contend, shift the economic burden to fishermen.13 In both its initial and amended forms, the ordinance requires that three percent (3%) be added to the price of fish, and places primary collection responsibility on the buyer. If anything, the amended form is in practical effect less burdensome to fishermen because it does not impose collection and accounting responsibilities on them, as the initial ordinance somewhat ambiguously did. We, therefore, conclude that no additional hearing after that of February 19 was required, and the ordinance was properly enacted.

II

In reviewing appellants’ claims that the borough’s raw fish tax is substantively illegal the following general comments are relevant. During the formative stages of our state constitution considerable attention was focused on designing a system of local government to answer to the perceived unique needs of Alaska. Traditional counties were viewed as financially handicapped, poor cousins of state government, without adequate fiscal autonomy. In a report prepared for the constitutional convention, the problem was summarized this way:

Tax Base: Within the framework of home rule provisions for local governments, such units would seem to enjoy considerable taxing freedom. This is not necessarily the case, however, for general state law can and frequently does restrict severely the taxing powers of local units. Where home rule is not in use, local units have only those taxing powers permitted them by state law or by such charters as they may be permitted to draft or may receive from the state legislatures. It is no understatement to say that throughout the United States most counties and municipalities have long been scraping the bottom of the tax resource barrel. In the face of ever-increasing service demands and mounting construction and administrative costs, few cities are amply supplied with revenue. New sources are everywhere being sought.
A major difficulty for local government in their search for adequate revenues is the virtual preemption of the most lucrative tax fields by the states and federal government. About all that many municipalities have left to them is the property tax, which has always been their principal source, and a few business license taxes and fees.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Frank Griswold v. City of Homer
Alaska Supreme Court, 2025
Public Safety Employees Association v. City of Fairbanks
420 P.3d 1243 (Alaska Supreme Court, 2018)
DeVilbiss v. Matanuska-Susitna Borough
356 P.3d 290 (Alaska Supreme Court, 2015)
Jacko v. State, Pebble Ltd. Partnership
353 P.3d 337 (Alaska Supreme Court, 2015)
L Street Investments v. Municipality of Anchorage
307 P.3d 965 (Alaska Supreme Court, 2013)
Fannon v. Matanuska-Susitna Borough
192 P.3d 982 (Alaska Supreme Court, 2008)
Stanek v. Kenai Peninsula Borough
81 P.3d 268 (Alaska Supreme Court, 2003)
Cabana v. Kenai Peninsula Borough
50 P.3d 798 (Alaska Supreme Court, 2002)
Griswold v. City of Homer
34 P.3d 1280 (Alaska Supreme Court, 2001)
McCormick v. City of Dillingham
16 P.3d 735 (Alaska Supreme Court, 2001)
City of St. Mary's v. St. Mary's Native Corp.
9 P.3d 1002 (Alaska Supreme Court, 2000)
Kotzebue Lions Club v. City of Kotzebue
955 P.2d 921 (Alaska Supreme Court, 1998)
Ajamian v. Montgomery County
639 A.2d 157 (Court of Special Appeals of Maryland, 1994)
Foreman v. Anchorage Equal Rights Commission
779 P.2d 1199 (Alaska Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
584 P.2d 1115, 1978 Alas. LEXIS 698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liberati-v-bristol-bay-borough-alaska-1978.