City, unions argue labor law in court

nherz@adn.comJuly 20, 2013 

The five-month-old fight over the city's new labor ordinance is now winding its way through court, where a judge will decide whether or not voters should get a chance to repeal the law through a referendum.

The two sides -- the city, and a pair of union officials -- have both made their preliminary filings in the case, and oral arguments are scheduled for Aug. 19, with a decision from Superior Court Judge Eric Aarseth expected after.

The lawsuit is targeting a rewrite of city labor law spearheaded by Mayor Dan Sullivan that passed the Assembly in March by a 6-to-5 vote. The law sharply limited annual raises for city employees, took away their right to strike, and restricted incentive pay and bonuses in future contracts.

That infuriated workers and labor officials, who then moved to repeal the law through a referendum. But the city rejected the referendum proposal on legal grounds -- which set up the unions' challenge in court.

Aarseth's conclusion will likely hinge on his interpretation of a single relevant decision from the state Supreme Court in 2009, which said that citizens could only bring forward referenda on laws that make big changes and set new policies, rather than laws that clarify measures that are already on the books.

"This case is an interesting test of the extent to which the Anchorage electorate can and should be able to participate in direct lawmaking," said Jason Brandeis, an assistant professor and constitutional law scholar at the University of Alaska Anchorage's Justice Center. "It's getting at: Does this qualify as one of the types of matters that citizens should be allowed to vote on, or not?"

Aarseth, the judge, was appointed by Gov. Frank Murkowski in 2005. He is a registered Republican, though both sides said they saw him as nonpartisan in his decisions.

"I have won some and lost some in front of him," Susan Orlansky, the attorney representing the unions, said in an interview. "I don't always agree with him but I respect the fact that he's trying to get it right."

Both Orlansky and City Attorney Dennis Wheeler agreed that the single most relevant previous case is Swetzof v. Philemonoff, in which two citizens wanted the village of St. George, in the Pribilof Islands, to get out of the electric power business.

The pair brought a citizens' initiative to City Clerk Phyllis Swetzof, who rejected it on the grounds that the proposed law was "administrative" rather than "legislative," and therefore too technical to allow citizens to vote on. The Alaska Supreme Court ultimately allowed the initiative to go ahead but laid out criteria for courts to use when evaluating future cases.

In Anchorage, the unions' argument is essentially that while the new labor law makes many changes, some small and some large, its wide overall sweep makes it undeniably "legislative," and therefore subject to a popular vote.

"(T)he breadth of the changes and their uniform direction -- all increasing control by management and decreasing the rights of unions and union members -- cannot reasonably be dismissed as administrative changes," the unions' brief reads. "Collectively, the changes establish new law."

The city concedes that some aspects of the new law are substantial enough to qualify as legislative.

But the majority of the ordinance, the city wrote in its own brief, "generally meets the guidelines that fall within the administrative rather than legislative type matters." It cites parts of the law that are "clerical edits," like those that "substitute gender neutral terms," and standardization of holidays and reimbursement procedures.

Wheeler, the city attorney, said in an interview that the union group could have limited its proposed referendum only to the broader, policy-related changes in the new law, and the city would have accepted it.

"But they chose not to," he said. "So now, you pull in all these other administrative things, and regardless of whether they're part and parcel of a bigger picture or not, they are the backbone of the administrative implementation of our labor laws."

Orlansky responded that the law only allows a referendum on a complete ordinance.

The filings were notable for their pointed tone -- one section of the city's brief chides the unions for complaining that "the sky is falling," while the unions characterize some of the city's arguments as wishful thinking on the part of Sullivan and some Assembly members.

While the Assembly hearings on the ordinance were packed, raucous affairs, the oral arguments should be more subdued -- likely not much more than an hour, to sum up written arguments and allow each side to clarify if Aarseth has any questions.

"It's not something we'll try to turn out a whole lot of people out for," Andy Holleman, the president of the city teachers union, said in an interview. "It's not like it's a venue where anybody can have input."

The loser can appeal to Alaska's Supreme Court but neither side committed to doing so.

If the unions win the case, they will then have to circulate petitions and gather the 7,124 signatures required before their referendum can get on the ballot.

If they can get those signatures quickly enough, the referendum would have to be the subject of a special election, which the city in its filings said would cost $280,000. If the Assembly decided to suspend the new labor law, the vote could then be pushed back to the city's regular election in April.

Holleman, the teachers union president, said he would be "fine either way."

"The key thing is that people in Anchorage will be able to weigh in or not on whether this was done right," he said.

Reach Nathaniel Herz at nherz@adn.com or 257-4311.

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