WASILLA -- The $1-a-pack tobacco tax's opponents, unsuccessful at the ballot box Oct. 4, filed suit Thursday, hoping to rid the Matanuska-Susitna Borough of the tax imposed by the Assembly in May.

"First, the borough doesn't have the authority to levy an excise tax," said Ken Jacobus of Anchorage, attorney for Nola Bragg and Link Fannon, who filed the lawsuit Thursday in Palmer Superior Court.

Alaska law allows boroughs and cities to collect property, sales and use taxes. It doesn't discuss excise taxes. Jacobus reasoned that, of the three, an excise tax could be considered most similar to a sales tax. If so, borough voters must approve the $1-a-pack tax before it's enacted, Jacobus said.

Mat-Su Borough attorney Teresa Williams was out of the office Thursday, and staff members in her office declined comment on the suit.

In a May 12 memo to the Assembly, Williams outlined her opinion on the tax.

"... Because there are no statutes specifically prohibiting the proposed excise tax and because voter approval is not statutorily required, the excise tax can be legally adopted and levied by the Assembly," Williams wrote.

In other words, the Mat-Su Borough should have no problem creating and collecting the tobacco tax.

The tax, imposed on the sale of all tobacco products, not just cigarettes, took effect in July. In three months, the borough netted more than $1 million on the sale of more than 17.8 million cigarettes, according to the Mat-Su Borough finance department.

Bragg said it was precisely the idea that the borough could create taxes without asking voters that rankled with her and got her motivated to launch a repeal effort. After the repeal effort was over, she said, she wasn't ready to let the issue die.

"The Assembly just passed it by four members, and the people did not get a chance to vote on it. We should have our say," Bragg said Thursday.

Fannon, a Houston city councilman, shares her views, Bragg said. Bragg took the lead in organizing the legal challenge.

Jacobus has a history of working on cases that challenge taxes or deal with personal rights. He helped work on tax cap legislation and fought to get a marijuana legalization effort on the state ballot.

He said Thursday he took the tobacco-tax case because it falls in line with his ideals. He's not a smoker or a supporter of smoking, he said, but he liked the idea behind the case.

Mat-Su Mayor Tim Anderson said Thursday he hadn't seen the lawsuit, but he's not worried the tax will be overturned.

"I have full faith in our legal advisers," Anderson said. "And if the court did rule to (overturn it), I really don't see a problem putting it on the ballot, either. The people have spoken on the repeal."

Fifty-seven percent of borough voters Oct. 4 rejected the proposed tax repeal.

Daily News reporter Rindi White can be reached at rwhite@adn.com