The Alaska Supreme Court ruled today (Friday 4-20-12) that a controversial 2008 citizens’ initiative in Sitka was legal, and should have gone before voters.

The proposed initiative was seen by many as way to control further development at Sitka’s former pulp mill site — including a possible cruise ship dock. But the litigation doesn’t mention ships at all. The underlying issues may be much larger.

A group called “Sitkans for Responsible Government” proposed a ballot initiative in the summer of 2008 that would have required any disposal of city real estate worth over $500,000 to be approved by voters.

Current municipal code, in fact, already requires a public vote for large land disposals, but exempts sales or leases at Sawmill Cove Industrial Park. Property sales there require only the approval of an appointed board of directors, and then an assembly resolution.

Sitkans for Responsible Government sought to change that through a citizen initiative, and to bring land disposals at Sawmill Cove into line with the code governing all other city land transactions.

Read the Alaska Supreme Court’s opinion here.
Read municipal attorney Theresa Hillhouse’s response here.

But the initiative never made it to the ballot. The municipal clerk’s office, under the guidance of municipal attorney Theresa Hillhouse, refused to certify the initiative — twice.

Both times, the rejections included lengthy arguments against the proposed initiative language provided by a law firm hired to consult with the city.

Sitkans for Responsible Government sought and won an injunction in Sitka Superior Court, which allowed signature-gathering to occur, but Judge David George ultimately ruled that Sitkans for Responsible Government — an informal group organized by Mike Litman and Jeff Farvour — had no legal standing, and he upheld the city’s refusal to certify the initiative. Judge George also found problems with the apparent conflict in Sitka’s code — voter ratification required for land disposals everywhere except Sawmill Cove.

Litman and Farvour, represented by Juneau attorney Joe Geldhof, appealed — and won. The Alaska Supreme Court found in favor of Sitkans for Responsible Government in every aspect of the case. Justices wrote “As the sponsors persuasively argue, their initiative would do no more than bring disposals of municipal land in the Sawmill Cove area into conformity with Sitka ordinances pertaining to disposal of municipal land generally.”

The justices also saw problems with Theresa Hillhouse’s legal rationale for refusing to certify the initiative in the first place: That the “petition is contrary to law and unenforceable.” The problem — if there is one — was never in the initiative, and Hillhouse and her legal team apparently admitted as much before the justices. They wrote, “If Sitka believes there is a conflict between municipal code [SGC 18.20.010] and the Sitka Charter — an issue Sitka conceded at oral argument is not before this court — the city should amend either its Charter or the ordinance.”

Geldhof, the attorney for Litman and Farvour, called the Supreme Court’s opinion “well reasoned.” He said his clients think Sitka residents ought to have a right to take a look at their initiative and vote on it.

Jeff Farvour says that the transfer of the former pulp dock to Silver Bay Seafoods, for the cost of repairs, and the possibility of a cruise dock development “sparked” the initiative, but the issue has always been about citizens’ rights.

The Supreme Court has remanded the case back to Judge George in Sitka, where municipal attorney Hillhouse is planning another strategy to limit voter control of land management at Sawmill Cove. In a written statement, Hillhouse reports that the same justices who handed her this defeat recently ruled that voters in Kenai do not have the power to veto capital projects over $1 million dollars. She’ll draw the attention of the Sitka Superior Court to this ruling, in the hope that it will resolve the issue in the city’s favor.

Although the original case was argued four years ago, the Supreme Court ruling cautions that the underlying issues are not dead. In response to Sitka’s argument that the 2008 election has come and gone, they write “there is a live, definite, and concrete controversy.” Sitka is still without a cruise ship dock, and the public likely remains divided on that question and other major development at Sawmill Cove.

The Supreme Court opinion notes that Sitkans for Responsible Government did not tie their complaint to any specific election. The justices do not see any reason why it could not appear on a future ballot.

Ed Ronco contributed to this story.