Municipality of Anchorage v. Holleman

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE, )
)
Supreme Court No. S-15315
Appellant, )
)
Superior Court No. 3AN-13-06812 CI
v. )
) OPINION
SAM ANDREW HOLLEMAN and )
JASON ALWARD, ) No. 6883 - March 28, 2014
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Michael R. Gatti and Mary B. Pinkel,
Wohlforth, Brecht, Cartledge & Brooking, Anchorage, and
Theresa L. Hillhouse, Assistant Municipal Attorney, and
Dennis A. Wheeler, Municipal Attorney, Anchorage, for
Appellant. Susan Orlansky, Feldman Orlansky & Sanders,
Anchorage, for Appellees.
Before: Winfree, Stowers, Maassen, and Bolger, Justices,
and Matthews, Senior Justice.* [Fabe, Chief Justice, not
participating.]
MAASSEN, Justice.
*
Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
I. INTRODUCTION
The Anchorage Assembly passed an ordinance modifying the labor
relations chapter of the Anchorage Municipal Code. Two citizen-sponsors filed an
application for a referendum that would repeal the ordinance. The Municipality rejected
the application, reasoning that the proposed referendum addressed administrative matters
that were not proper subjects for direct citizen legislation. The sponsors filed suit in
superior court and prevailed on summary judgment. The Municipality appealed, arguing
that the referendum is barred because (1) state and municipal law grants exclusive
authority over labor relations to the Assembly; (2) the referendum makes an
appropriation; and (3) its subject is administrative, not legislative. Following oral
argument, we issued an order on January 10, 2014, affirming the superior court’s grant
of summary judgment to the sponsors. This opinion explains our reasoning.
II. FACTS AND PROCEEDINGS
A. The Ordinance
On February 12, 2013, Mayor Dan Sullivan and two members of the
Anchorage Assembly proposed Anchorage Ordinance No. 2013-37, “An Ordinance
Amending Anchorage Municipal Code Chapter 3.70, Employee Relations, with
Comprehensive Updates Securing Long Term Viability and Financial Stability of
Employee and Labor Relations.” The Assembly approved the final version of the
ordinance six weeks later, and the ordinance took effect immediately.1
The ordinance amends the Employee Relations chapter of the Anchorage
Municipal Code (AMC).2 It first adds six new subsections to the Declaration of Policy
1
Anchorage Ordinance (AO) 2013-37(S-2) § 6 (2013).
2
A.M.C. 3.70 (2013).
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in AMC 3.70.020.3 These subsections encourage the development and implementation
of a managed competition program,4 cap salary and benefit increases, standardize
employee benefits and holidays, limit enhanced pay programs, and require unions to
reimburse the Municipality for employee time spent performing services for the union.
The ordinance also limits overtime compensation; prohibits strikes;
eliminates binding arbitration for police, fire protection, and emergency medical services;
bars arbitrators from relying on past practices to alter unambiguous provisions in
collective bargaining agreements; allows the Municipality to implement its “last best
offer” if the parties are at a bargaining impasse; and expands the definitions of
“confidential” and “supervisory” employees, thereby increasing the number of
employees who are barred from collective bargaining.5 The ordinance makes other
relatively minor amendments throughout the Code for purposes of clarity and
consistency.
B. Proceedings Below
Sam Andrew Holleman and Jason Alward (the sponsors) filed an
application with the municipal clerk’s office for a referendum that would repeal the
ordinance. The Municipality rejected the application on the advice of its attorney, who
concluded that the referendum sought to address administrative rather than legislative
3
Compare AMC 3.70.020 (2013) with former AMC 3.70.020 (2012).
4
A “managed competition program” is defined in the ordinance as “a
program intended to procure the delivery of the most reliable, efficient and effective
municipal services to the citizens of Anchorage, through municipal sponsorship of
regulated competition for the delivery of selected services.”
5
Compare AMC 3.70.010 (2013) with former AMC 3.70.010 (2012).
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matters and therefore violated subject-matter restrictions imposed by law.6 The sponsors
filed suit in superior court on May 2, 2013, seeking declaratory and injunctive relief.
The Municipality, in its answer, sought a declaratory judgment in its favor.
The parties agreed that there were no material facts in dispute and filed
cross-motions for summary judgment. The superior court heard oral argument on
August 19, 2013, granted summary judgment to the sponsors in a written opinion, and
ordered that the referendum application be accepted. The sponsors soon collected
enough signatures to place the referendum on the ballot, and the ordinance was
suspended pending an election.7
The Municipality filed this appeal.
III. STANDARDS OF REVIEW
We review a grant of summary judgment de novo and will affirm “if there
are no genuine issues of material fact” and “the moving party is entitled to judgment as
a matter of law.”8 We review questions of law by “adopting the rule of law that is most
persuasive in light of precedent, reason, and policy.”9 We apply our independent
6
This was the sponsors’ second application. Their first was rejected for the
same reasons, as well as for “technical defects” that they subsequently corrected.
7
Article III, subsection 3.02(c) of the Anchorage Municipal Charter provides
that the “filing of a referendum petition suspends the ordinance . . . if the petition is filed
within 60 days after the effective date of the ordinance,” and that the suspension
terminates if the referendum is defeated by the voters.
8
Municipality of Anchorage v. Repasky, 34 P.3d 302, 305 (Alaska 2001).
9
Carmony v. McKechnie, 217 P.3d 818, 819 (Alaska 2009) (internal
quotation marks omitted).
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judgment when interpreting the Alaska Statutes, municipal charters, and municipal
codes.10
IV. DISCUSSION
A. Legal Framework
Article XI, section 1 of the Alaska Constitution provides that “[t]he people
may propose and enact laws by the initiative, and approve or reject acts of the legislature
by the referendum.” This right is extended by statute to citizens of home-rule local
governments.11 The Anchorage Municipal Charter accordingly “guarantees . . . [t]he
right of initiative; the right of referendum; and the right to recall public officers, as herein
provided.”12 The right of referendum is not absolute. Under article XI, section 7 of the
Alaska Constitution, “[t]he referendum shall not be applied to dedications of revenue,
to appropriations, to local or special legislation, or to laws necessary for the immediate
preservation of the public peace, health, or safety,” and a state statute requires that local
government charters contain the same restrictions.13 The Anchorage Charter explicitly
prohibits direct legislation on “ordinances establishing budgets, fixing mill levies,
authorizing the issuance of bonds, or appropriating funds.”14
10
Repasky, 34 P.3d at 305.
11
AS 29.10.030(a) (“A home rule charter shall provide procedures for
initiative and referendum.”).
12
Charter art. II(1).
13
AS 29.10.030(c) (“A charter may not permit the initiative and referendum
to be used for a purpose prohibited by art. XI, § 7 of the state constitution.”).
14
Charter art. III, § 3.02(a).
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“[W]e liberally construe the constitutional and statutory provisions
pertaining to the use of initiatives . . . so that the people are permitted to vote and express
their will on the proposed legislation.”15
B. The Referendum Is Not Preempted By State Or Municipal Law.
In support of its position that the sponsors’ referendum application was
properly rejected, the Municipality first argues that the Public Employment Relations
Act, the Anchorage Charter, and the Municipality’s home-rule status give exclusive
authority over labor relations to the Assembly, preempting the citizens’ right to legislate
in that area by initiative and referendum. The Municipality argues alternatively that the
referendum at issue here impermissibly strips the Assembly of its authority to enact labor
relations ordinances. We reject these arguments.
1. Public Employment Relations Act
The Public Employment Relations Act16 (PERA) establishes statewide
guidelines for public employment relations, while allowing local governments to opt out
of its provisions.17 According to the Municipality, PERA grants exclusive authority over
employment relations to the Assembly, and the referendum at issue here clearly conflicts
with that grant of exclusive authority.18 The Municipality relies specifically on
15
Sitkans for Responsible Gov’t v. City & Borough of Sitka, 274 P.3d 486,
492 (Alaska 2012) (internal quotation marks omitted); see also Thomas v. Bailey, 595
P.2d 1, 3 (Alaska 1979) (“The right of initiative and referendum, sometimes referred to
as direct legislation, should be liberally construed to permit exercise of that right.”).
16
AS 23.40.070-.260.
17
AS 23.40.255(a).
18
We would invalidate a local initiative or referendum that conflicted with
state law. See Whitson v. Anchorage, 608 P.2d 759, 761 (Alaska 1980) (rejecting voter
initiative to require voter approval for new taxes where statute required that taxes be
(continued...)
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AS 23.40.255(a), which provides that PERA applies to political subdivisions of the state
“unless the legislative body of the political subdivision, by ordinance or resolution,
rejects having [PERA] apply.” But the only authority this statute gives to “the legislative
body of the political subdivision” is the authority to reject PERA, which the Assembly
did shortly after PERA was enacted.19 There is nothing in AS 23.40.255(a), or elsewhere
in PERA, that requires or allows the legislative body to exercise exclusive control over
labor relations once it has opted out of the Act.
The Municipality relies on several Washington cases that prohibited voter
initiatives on grounds that the power at issue had been granted to the city’s governing
body; such a grant was interpreted to mean “exclusively the mayor and city council and
not the electorate.”20 We do not need to decide whether to apply the same rule here.
While PERA does grant the “legislative body” of the Municipality a specific power, it
is only the power to reject PERA’s provisions, not the exclusive power thereafter to
legislate in the area of labor relations.21
18
(...continued)
levied only by general ordinance).
19
See Anchorage Mun. Emps. Ass’n v. Municipality of Anchorage, 618 P.2d
575, 581 (Alaska 1980).
20
Mukilteo Citizens for Simple Gov’t v. City of Mukilteo, 272 P.3d 227, 233
(Wash. 2012) (holding that an initiative requiring a popular vote to authorize the use of
automated traffic safety cameras for tickets was beyond the scope of the initiative power
because the state legislature granted authority to the local legislature, not the city); City
of Sequim v. Malkasian, 138 P.3d 943, 949-51 (Wash. 2006) (holding that an initiative
was prohibited where the legislature “unambiguously granted the legislative body of the
city the authority over revenue bonds”).
21
AS 23.40.255(a).
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2. Anchorage Municipal Charter
The Municipality also contends that certain provisions of its Charter, read
together, grant exclusive authority to the Assembly to regulate “all aspects of employee
relations and personnel classification and procedures.” Article V, § 5.06 of the Charter
states that “[t]he assembly by ordinance shall adopt an administrative code providing for
. . . [p]ersonnel policy and rules preserving the merit principle of employment.”
Article II(9) of the Charter “guarantees . . . to the people of Anchorage . . . [t]he right
. . . to a comprehensive personnel classification and procedures system created by
ordinance and based upon merit.” But while these provisions require the Assembly to
enact labor-relations ordinances, they do not purport to grant the Assembly all authority
in that area, to the exclusion of direct citizen legislation through initiative and
referendum.
When Anchorage voters approved the Charter, they knew that certain listed
subjects — mill levies, the issuance of bonds, and appropriation of funds — were off-
limits for direct citizen legislation because the Charter expressly said so.22 Labor
relations is not on the list. Particularly given the importance of the rights of initiative and
referendum, we will not readily imply such a broad addition to the subjects that cannot
be addressed through the exercise of those rights.23
3. Home-rule status
The Municipality argues that because the legislature has not limited the
authority of home-rule municipalities to enact labor ordinances, the Assembly’s authority
in the area is exclusive. But this argument fails for the same reason as the Municipality’s
22
Charter art. III, § 3.02(a).
23
See Vanvelzor v. Vanvelzor, 219 P.3d 184, 188 (Alaska 2009) (“We follow
the doctrine of statutory construction that when the legislature expressly enumerates
included terms, all others are impliedly excluded.”).
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arguments based on PERA and the Charter. That a legislative body has the authority to
make laws does not mean that its authority to make laws is exclusive of the citizens’
correlative right of direct legislation, absent some express limitation. If it were
otherwise, the universe in which the initiative and referendum could be exercised would
be a small one.
4. Divesting the Assembly of the authority to create labor
ordinances
The Municipality also argues that the referendum, if passed, would “strip
the Assembly of its power to create labor relations ordinances.” The Municipality
compares this ordinance to the initiative at issue in Carmony v. McKechnie, which
proposed to take away the borough assembly’s power to pass land-use regulations by
subjecting any regulation to a popular vote.24 The initiative was prohibited because it
sought to bypass state statutes requiring that a borough establish a planning commission
to “review, recommend, and administer measures” necessary to implement land use
plans,25 and because it would have divested both current and future legislatures “of
[their] statutorily-mandated role in zoning and land use planning.”26
In contrast, the referendum in this case does not subject any future labor
ordinances passed by the Assembly to a popular vote; it merely allows a popular vote on
a single ordinance. Nor does the referendum prevent the Assembly from passing labor
ordinances in the future. As the sponsors point out, “[a]ccepting the Municipality’s
claim that the referendum would result in an impermissible divestiture of the Assembly’s
24
217 P.3d 818, 819 (Alaska 2009).
25
Id. at 821 (citing Griswold v. City of Homer, 186 P.3d 558, 561-62 (Alaska
2008)).
26
Id.
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legislative power effectively would preclude all referenda on local ordinances, because
all such referenda are by nature a way for the voters to reject one act of the local
legislature.” Our holding in Carmony does not invalidate the referendum at issue here.
C. The Referendum Does Not Apply To An Appropriation.
Article XI, section 7 of the Alaska Constitution prohibits application of the
referendum to “dedications of revenue” or “to appropriations,” and subsection 3.02(a)
of the Anchorage Municipal Charter correspondingly prohibits use of the referendum for
“establishing budgets” or “appropriating funds.” The Municipality argues that the
referendum at issue here appropriates public assets because the ordinance it seeks to
repeal was itself intended to save money on labor costs; repealing the ordinance, the
argument goes, will ipso facto cost money that the Assembly could otherwise direct
toward other priorities.
But we have never held that any effect on public resources triggers the
prohibition on direct legislation; nearly all legislation involves public assets to some
degree.27 We have held that “[a]n initiative proposes to make an appropriation if it would
set aside a certain specified amount of money or property for a specific purpose or object
in such a manner that is executable, mandatory, and reasonably definite with no further
legislative action.”28 In Anchorage Citizens for Taxi Reform v. Municipality of
27
Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064,
1077 (Alaska 2009) (“[T]he prohibition against initiatives that appropriate public assets
does not extend to prohibit initiatives that regulate public assets, so long as the
regulations do not result in the allocation of an asset entirely to one group at the expense
of another.”).
28
Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273
P.3d 1128, 1136 (Alaska 2012) (quoting Alaska Action Ctr., Inc. v. Municipality of
Anchorage, 84 P.3d 989, 993 (Alaska 2004) and City of Fairbanks v. Fairbanks
Convention & Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991)) (internal quotation
(continued...)
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Anchorage, we noted our use of “a two-part inquiry to determine whether a particular
initiative makes an appropriation.”29 Under this test, we first “determine whether the
initiative deals with a public asset”; our prior cases hold that “public revenue, land, a
municipally-owned utility, and wild salmon are all public assets that cannot be
appropriated by initiative.”30 The second step in the analysis is to “determine whether
the initiative would appropriate that asset.”31 In making this determination we look to
“ ‘the two core objectives’ of the limitation on the use of the initiative power to make
appropriations”: first, “preventing ‘give-away programs’ that appeal to the self-interest
of voters and endanger the state treasury”; and second, “preserving legislative discretion
by ‘ensur[ing] that the legislature, and only the legislature, retains control over the
allocation of state assets among competing needs.’ ”32
The parties agree that the referendum at issue here deals with public
revenue, which is a public asset for purposes of this analysis. As to whether the
28
(...continued)
marks omitted).
29
151 P.3d 418, 422 (Alaska 2006). We have never had occasion to decide
whether a proposed referendum will make or repeal an appropriation, but we have
addressed the issue a number of times in the context of initiatives, and we see no reason
why the analysis would differ. In one referendum case, Washington’s Army v. City of
Seward, 181 P.3d 1102, 1105-06 (Alaska 2008), we expressly declined to reach the issue
of whether a city’s decision to vacate a public street in favor of a planned inter-agency
administrative and visitor center was an appropriation, holding that the referendum
application had been properly rejected for other reasons.
30
Anchorage Citizens for Taxi Reform, 151 P.3d at 422-23 (footnotes
omitted).
31
Id. at 423.
32
Id. (emphasis in original).
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referendum would appropriate that asset, the Municipality does not argue that it is a
“give-away program”; it contends rather that the referendum interferes with the
Assembly’s control over the allocation of limited municipal resources by preventing the
Municipality from implementing cost-saving measures — measures that would, in turn,
free up public revenues to be spent “in other areas of city government, such as public
works, public health, and non-union employee wages.”
But the referendum does not compel or restrict the expenditure of public
funds, the approval of labor contracts, or any particular level of employee compensation.
In a Summary of Economic Effects that accompanied the proposed ordinance when it
was presented to the Assembly, the Municipality’s Departments of Law and Employee
Relations explained the ordinance’s anticipated impact on public funds:
By itself, this ordinance does not raise revenue or reduce
expenses, although the intent, in part, is to better manage
labor costs over time. Until specific labor agreements are
negotiated and approved by the Assembly, the economic
effects of this ordinance cannot be known. Overall, the
economic effects will require a comparison of a given current
contract to the proposed new contract. Even the “soft” cap
on wage increases may not create economic effects different
from the current contract, depending on changes in CPI and
other factors. In addition, every contract is subject to the
annual budgeting and appropriations process.
There may be reductions in administrative costs related to
managing fewer benefit plans, pay codes, and managing
fewer contract clauses across all the contracts. But, these cost
reductions are not predictable at this time.
Under the Municipality’s own assessment, the economic effects of the ordinance are
indirect and presently unknowable; there is no reason to believe that the economic effects
of the referendum repealing the ordinance are any different. This is not at all the
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“executable, mandatory, and reasonably definite” set-aside that our case law requires
before we will find that an initiative or referendum makes an appropriation.33
D. The Ordinance Is Legislative.
The common law in many jurisdictions restricts the powers of initiative and
referendum to “enactments that are legislative rather than administrative or executive in
character.”34 We recognized this restriction in 1973.35 The legislature codified the
restriction for municipalities in 1985, at least with regard to the initiative; we assume for
purposes of argument that it applies to the referendum as well.36 The rationale for the
rule is based on “government efficiency grounds” — giving citizens the right to demand
a vote for “every administrative act of the city council would place municipal
government in a straight-jacket and make it impossible for the city’s officers to carry on
the public business.”37
Again, the government-efficiency rationale appears to apply equally to both
referendums and initiatives. In Swetzoff v. Philemonoff, we articulated three guidelines
33
Alliance of Concerned Taxpayers, 273 P.3d at 1136.
34
Swetzof v. Philemonoff, 203 P.3d 471, 476 (Alaska 2009).
35
Wolf v. Alaska State Hous. Auth., 514 P.2d 233, 235 n.13 (Alaska 1973).
36
The legislature addressed the powers of initiative and referendum for both
home-rule and general law municipalities through 1985 amendments to the Municipal
Code. AS 29.26.110(a) now requires a municipal clerk to certify, “for an initiative
petition, that the matter . . . relates to a legislative rather than to an administrative
matter.” The statute contains no such requirement for referendum petitions. We do not
need to decide here, however, whether the restriction to legislative matters applies to
referendums, as we hold that the referendum at issue is legislative and would not be
barred in any event.
37
Swetzof, 203 P.3d at 476 (quoting Hous. Auth. of Eureka v. Superior Court,
219 P.2d 457, 461 (Cal. 1950)).
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for determining whether an initiative impermissibly addresses an administrative matter,
and we apply the same guidelines in this case:
1. An ordinance that makes new law is legislative; while
an ordinance that executes an existing law is administrative.
Permanency and generality are key features of a legislative
ordinance.
2. Acts that declare public purpose and provide ways and
means to accomplish that purpose generally may be classified
as legislative. Acts that deal with a small segment of an
overall policy question generally are administrative.
3. Decisions which require specialized training and
experience in municipal government and intimate knowledge
of the fiscal and other affairs of a city in order to make a
rational choice may properly be characterized as
administrative, even though they may also be said to involve
the establishment of a policy.[38]
We first address whether the ordinance at issue makes new law. The
Municipality acknowledges that certain provisions of the ordinance at issue here were
not in previous versions of the Municipal Code and instead represent new policies. It
argues that the policies are good ones, but it fails to adequately explain why they are not
new law.39 It contends that the ordinance represents simply “a step along a previously
38
Id. at 477, 479 (quoting City of Wichita v. Kansas Taxpayers Network, Inc.,
874 P.2d 667, 671-72 (Kan. 1994)).
39
For example, the Municipality argues that the new cap on salary and benefit
increases will allow the Municipality to “not . . . exceed the cost of living with [its]
overall [labor cost] increases,” and the uniform holiday provisions “will make it easier
for supervisors to manage their employees.” Similarly, the Municipality claims that the
no-strike provision “recognizes the threat to [the] public, health, and safety that would
result if other unions were to strike.”
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charted course”40 because it returns the Municipality to policies that were in effect in the
1980s and that resulted in fairly standardized employee benefits. As the sponsors point
out, however, the Municipality followed a different course for several decades. A return
to the policies of 1985 represents a “new policy direction”41 for 2013. We conclude that
the ordinance makes new law.
The ordinance is also permanent and general. The Municipality claims that
the ordinance is not permanent because it does not take the Municipality “permanently
. . . out of the practice of recognizing its unions and collectively bargaining with them,”
and because a future Assembly could again change the Municipal Code. But this
argument is unpersuasive. If permanency in this context meant that a law had to be
impervious to change by a successor legislative body, no law would ever be permanent
under Swetzof.42 The ordinance is also general; it applies to all public unions and union
members.
The second guideline from Swetzof similarly points to the conclusion that
the ordinance, and therefore the referendum seeking to repeal it, are legislative. The
ordinance declares new public policies and provides ways and means to accomplish
them. The Municipality broadly defines the relevant policy as “labor relations” or
“collective bargaining” and argues that the ordinance deals with only a small piece of this
larger question. The sponsors argue, on the other hand, that this distinction is “more
40
Swetzof, 203 P.3d at 479.
41
Id.
42
See Mount Juneau Enters., Inc. v. City & Borough of Juneau, 923 P.2d 768,
776 (Alaska 1996) (“The law is clear that a legislative body may not limit its power to
act one way or another in the future in governmental[,] as opposed to proprietary,
functions.” (quoting City of Louisville v. Fiscal Court of Jefferson Cnty., 623 S.W.2d
219, 224 (Ky. 1981))).
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semantic than meaningful,” and we agree. Even assuming that the relevant policy is the
broad one of labor relations, the ordinance still deals with a significant part of this policy.
The ordinance also provides the “ways and means to accomplish [its]
purpose.”43 The overall purpose of the ordinance is to “upgrade” the Municipality’s
labor code so that it is more uniform and efficient. The ordinance provides the ways and
means to accomplish that purpose by setting out the six new policies designed to reduce
costs, standardize benefits, and otherwise modernize the code,44 and by making other
revisions intended to effectuate these policy goals, such as eliminating the rights to strike
and to binding arbitration.
The third Swetzof guideline looks to whether deciding the issue in question
requires expertise.45 If specialized training in municipal government or intimate
knowledge of the fiscal affairs of the city is required to intelligently decide the issue, the
ordinance is likely administrative rather than legislative.46 However, “guideline three
should not supersede guidelines one and two when analyzing broad policy decisions.”47
Thus in Swetzof we assumed that the proposed initiative (intended to move the City of
St. Paul out of the business of selling electric power) could involve financial
consequences “that the electorate cannot readily appreciate,” but we nonetheless
43
Swetzof, 203 P.3d at 479.
44
The six new policies are: managed competition, limiting direct labor cost
increases, standardizing employee benefits, reimbursement to the Municipality for union
work, uniform holidays, and elimination of pay enhancements for new employees. AMC
3.70.020(C)-(H).
45
Swetzof, 203 P.3d at 479.
46
Id. at 479-80.
47
Id. at 480.
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concluded that the initiative was legislative.48 Looking at the ordinance in this case, we
credit the Municipality’s arguments that it deals with many specific labor rules and the
intricate details of the Municipality’s interactions with unions and union members. Still,
the ordinance addresses broad concepts that voters can readily understand — managed
competition, caps on compensation, bringing uniformity to benefits and holidays, and
eliminating the rights to strike and to binding arbitration. Again, we conclude that the
third Swetzof factor points to a conclusion that the ordinance, and the referendum seeking
to repeal it, are legislative.
Our conclusion is not changed by the fact that certain parts of the ordinance
are clearly administrative. In Swetzof, we specifically rejected a fourth guideline that
would have only allowed direct legislation for “measures which are quite clearly and
fully legislative and not principally executive or administrative.”49 In rejecting this
guideline, we observed that it “may give too much weight to the administrative aspects
of an initiative containing both legislative and administrative matters,” which would “run
counter to our rule of construction that proposed initiatives should be construed liberally
. . . to support the electorate’s right to participate in direct law-making.” 50 Having
reviewed the ordinance at issue here using the three guidelines of Swetzof, we conclude
that the voters have a right to address it by referendum.
V. CONCLUSION
The superior court’s order granting summary judgment to the sponsors and
denying the Municipality’s cross-motion for summary judgment is AFFIRMED.
48
Id. at 479-81.
49
Id. at 477.
50
Id. at 479.
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