Kotzebue Lions Club v. City of Kotzebue

BRYNER, Justice,

with whom FARE, Justice, joins, concurring.

Although I join in the court’s opinion in all other respects, I do not agree with its conclusion that the City complied with its statutory duty to publish a clear and adequate summary of its proposed ordinance amending the definition of taxable sales.

The court agrees with the Lions Club that the published summary was “incomplete in that it did not mention [the proposed ordinance’s] purpose of expressly including bingo and pull-tab operations within the scope of the tax.” Op. at 926. Nevertheless, relying on Fairbanks North Star Borough v. College Utilities Corp., 689 P.2d 460 (Alaska 1984), the court concludes that the summary passed muster under AS 29.25.020(b)(3) because it was “literally accurate,” Op. at 925, and because it was overly inclusive in the sense that “any uncertainty which the summary caused would have only the effect of inducing more people to attend the meeting, as was the case in Fairbanks North Star Borough.” Op. at 925.

The court’s reading of Fairbanks North Star Borough is troublesome. The published notice at issue in Fairbanks North Star Borough was a single summary that described two proposed ordinances, one appropriating funds for all fifty-seven service areas in the borough and another fixing tax rates for twenty of the fifty-seven.1 See id. at 462. *926The primary challenge to this summary was that it was vague in describing the tax-rate ordinance because it failed to specify the proposed new mill rate for each affected service area. See id. at 462-63. In addressing the vagueness challenge, we observed that the summary “described clearly, if generally, what the proposed ordinance would accomplish,” id. at 462, and we reasoned that greater specificity could not be countenanced. See id. at 463. We thus expressly found that “the summary [was] not ‘vague,’ ” id. at 462, and that it “adequately and accurately summarized the proposed ordinance.” Id. at 463.

In a footnoted comment, we separately addressed the “notice aspect” of the summary, which we found “not perfect” because it was worded in a way that “could mislead the reader into thinking that the proposed ordinance would set property tax rates for more service areas than it actually affected.” Id. at 462-63 n. 7. We dismissed this problem as insignificant, noting that, “if anything, more readers would expect to be affected by the ordinance as described [in the summary], and their misconception ... would presumably motivate them to attend the hearing.” Id.

As I read Fairbanks North Star Borough, it stands for the modest proposition that a clear summary of an ordinance’s subject matter and purpose will not be invalidated merely because its wording describes the potential scope of the ordinance’s coverage too broadly. In today’s decision, however, the court conflates Fairbanks North Star Borough’s, separate treatment of vagueness and overly inclusive notice to suggest that overly inclusive notice can cure vagueness. In declining to squarely address whether the published summary in the present case adequately described the subject and purpose of the City’s proposed sales tax ordinance, the court seemingly holds that as long as the summary was “literally accurate,” Op. at ——■, and gave overly inclusive notice, id., its vagueness is of no concern.

This test of compliance makes little sense, because the vaguer a summary, the more likely it is to be both literally accurate and overly inclusive. Under this test, vagueness itself becomes a redeeming virtue.2

When a published summary is vague in its description of an ordinance’s subject and purpose, and when its own vagueness is the cause of its overly inclusive public notice, the public has no basis for informed choice; it must decide whether to attend a meeting on the off-chance that something of actual interest might be considered. The predictable result of such guesswork notice is reduced, not enhanced, public participation: members of the public whose interests are actually affected may be lulled into complacency by the innocuous generality of the vague description.3

In the present ease, the published summary is overly inclusive precisely because it does not describe as clearly as it might the subject and purpose of the City’s proposed sales tax ordinance: to include bingo and pull-tab sales within the definition of taxable sales. Unlike the situation in Fairbanks North Star Borough, the situation here permits a strong argument that the published summary did not “clearly” or “adequately and accurately” describe “what the proposed ordinance would accomplish.” 689 P.2d at 462-63. In my view, the issue of statutory compliance thus presents a very close question.

*927The court’s reliance on a questionable interpretation of Fairbanks North Star Borough to decide this issue is troubling because the issue itself need not be decided. The harmless error rationale set out in footnote 13 of the court’s opinion offers a straightforward, fully sufficient, and clearly correct alternative basis for concluding that the City properly required the Lions Club to pay the sales tax. Given the ready availability of this alternative rationale, I see no reason for the court’s insistence on creating a new and potentially problematic legal rule.

Accordingly, I join in the court’s opinion except as to Part III.C.2. As to that part of the opinion, my agreement with the court is limited to the harmless error rationale set out in footnote 13.

. The summary stated: "An ordinance amending the FY 1982-83 budget by appropriating funds for the borough service areas and fixing the rate of real property tax levy for these service areas for the 1982/83 fiscal year." See id. at 462.

. If literal accuracy and overly inclusive notice are enough to comply with the statutory notice requirement — as the court suggests they are— then the City's summary in the present case would have been adequate if, instead of saying "amending the definition of ‘sale’ under KMC 3.20.010(E),” it said something like "amending a tax ordinance,” or even "amending an ordinance.” Each of these formulations is "literally accurate,” and each is overly inclusive.

. For example, notice of an ordinance "amending the definition of ‘sale’ under KMC 3.20.010(e),” may mean little to anyone, leading no one to attend the City assembly meeting. In contrast, notice of an ordinance "amending the definition of ‘sale’ to include bingo and pull tab sales” may mean nothing to most people, but it will mean very much to an interested few, who will attend and participate. The court’s view that overly inclusive notice will invariably generate greater attendance in such cases is questionable.