Supreme Court rules against Carmony

MAT-SU — The state Supreme Court issued a ruling Friday in a lawsuit that the now-former general manager of Matanuska Electric Association filed against the Mat-Su Borough during the debate over power plants in the Valley.

At issue in the case was the question of a ballot initiative Wayne Carmony tried to have put before the voters in 2007. Carmony has since been fired from his general manager position after a protracted battle with the utility’s board of directors.

The initiative, in essence, would have required all land-use, planning and platting decisions be put to a vote in the next election or else automatically sunset.

Carmony sued the borough during a drawn-out fight over MEA’s plans to build a coal-fired power plant in the Valley. MEA shelved those plans after the borough assembly passed an ordinance requiring permits for power plants. The utility called the ordinance unfair, onerous and costly.

In 2008, MEA led a drive to repeal the ordinance, which the board of directors — drastically changed in an election held in the interim — eventually voted not to fund. That initiative lost at the ballot box.

The 2007 petition failed in its first test when the borough clerk, then Michelle McGehee, tossed it out before it could even get on the ballot, declaring it unenforceable as a matter of law, in conflict with the state’s Constitution and relating to an administrative matter rather than a legislative matter.

Carmony then asked that the matter be brought to Superior Court, where Judge Kari Kristiansen quickly sided with McGehee. From there it was appealed to the state Supreme Court which, in a decision penned by Chief Justice Walter Carpeneti, sided with Kristiansen and, by extension, McGehee.

Carpeneti wrote that the ordinance would have circumvented state law.

“The proposed initiative would subject all land use enactments of the borough assembly to popular vote. For all practical purposes, the borough assembly would no longer be able to exercise the land use regulatory authority specifically delegated to it by state law,” Carpeneti wrote. “It would make all long-range land use policy and planning impossible.”

Not only does the state grant the borough those powers, but the state mandates that boroughs such as the Matanuska-Susitna Borough exercise those powers.

Carpeneti took note of the argument that the initiative wouldn’t have kept the borough from making decisions but simply put a time limit on those decisions, but wrote that such an argument doesn’t hold water.

The intent of state law, he wrote, clearly indicates that borough decisions on such matters should contain “certainty, continuity, consistency and comprehensiveness.” If the initiative went through, he wrote, there would be a lot of uncertainty every time the borough made a decision, since it wouldn’t be permanent until after the subsequent election.

“If a given measure failed to win voter approval, the uncertainty and resulting policy and planning vacuum could easily continue for years while the borough attempted to craft a measure that would win voter approval. The state Legislature did not intend such a piecemeal, uncertain process when it mandated that borough assemblies enact comprehensive plans,” he wrote.

Carmony also appealed to the Supreme Court saying he shouldn’t be liable for the $1.633.50 in borough attorneys’ fees he was charged. He claimed he shouldn’t be charged those fees because he was suing for the public interest, rather than for himself.

According to Carpeneti, Kristiansen’s ruling was that MEA had a financial interest in the ordinance and therefore Carmony wasn’t suing in the public interest.

The Supreme Court agreed, Carpeneti wrote, but for different reasons — to be a public interest litigant, Carmony would have had to be suing on a constitutional issue.

“We conclude that the question of economic incentives does not matter because this case did not involve constitutional claims,” he wrote.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.