Concerned Citizens of South Kenai Peninsula v. Kenai Peninsula Borough

• Decision Date: 21 October 1974
• Docket Number: No. 2239,2239
• Parties: CONCERNED CITIZENS OF SOUTH KENAI PENINSULA and Mary Ann McBride, Appellants, v. KENAI PENINSULA BOROUGH et al., Appellees.
• Court: Alaska Supreme Court

Page 447

527 P.2d 447

CONCERNED CITIZENS OF SOUTH KENAI PENINSULA and Mary Ann McBride, Appellants, v. KENAI PENINSULA BOROUGH et al., Appellees.

No. 2239.

Supreme Court of Alaska.

Oct. 21, 1974.

Karl L. Walter, Jr., Groh, Benkert & Walter, Anchorage, for appellants.

John R. Strachan, Robison, McCaskey, Strachan & Hoge, and A. Robert Hahn, Jr., Hahn, Jewell & Stanfill, Anchorage, and Ben T. Delahay, Borough Atty., Kenai Peninsula Borough, Kenai, for appellees.

John R. Spencer, City Atty., City of Anchorage, Anchorage, for amicus curiae.

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

OPINION

ERWIN, Justice.

Appellants are taxpayers who seek a dissolution of the South Kenai Peninsula Hospital Service Area. The service area was created in 1969 by Ordinance No. 69-4 of the Kenai Peninsula Borough Assembly to operate a hospital in the southwestern portion of the Borough. Delegation of assembly powers to the service area was approved by voters of the area on April 8, 1969. A hospital board was organized, and a fifty-five year lease was negotiated for operation of the former City of Homer hospital. Plans were laid for enlarging the facility, and on June 5, 1973, service area voters authorized issuance of $1,500,000 in bonds for construction of a new hospital. Thereafter, a federal grant and loan in the amount of $1,439,900 and a state grant of $1,723,100 were secured and an architectural design contract for the new structure was awarded.

On February 13, 1974, the complaint in this action was filed. Defendants then moved for summary judgment. In an oral ruling granting the motion, the superior court held that creation of the service area was not an arbitrary act denying due process of law; that the description set out in Ordinance No. 69-4 adequately designated the hospital district boundaries; and that laches barred plaintiffs' other claims that organization of the service area violated state statutes and constitutional provisions. Findings of fact prepared by defendants were then adopted. These omitted mention of laches and ruled on the merits against the plaintiffs on all issues.

On appeal appellants have again raised the questions of due process and definiteness in the boundary description and have also asked us to consider whether a service area can be formed which encompasses cities capable of providing the same service. This last issue was found by the superior court to be barred by laches. In addition, appellants have contended that the superior court did not require appellees to carry the burden of proving they were entitled to summary judgment. In response, appellees have resisted these claims and have reasserted the defense of laches.

Because circumstances required an immediate announcement of our decision, the judgment of the superior court was affirmed by order on July 2, 1974. ¹ This opinion sets forth our reasons for the affirmance.

1. SUMMARY JUDGMENT PRACTICE

Appellants argue that the superior court had before it no evidence which could have supported a decree of summary judgment. We do not agree. Appended to appellees' memorandum in support of their motion for summary judgment were photocopies of Borough resolutions and ordinances, sample ballots, election canvass reports, and constitutional and statutory provisions. In addition, at the time the court ruled on the motion, the record included amended pleadings and sworn answers to interrogatories propounded by both sides.

A party seeking summary judgment under Civil Rule 56 ² has the burden of showing both that the case presents no material issue of fact requiring the taking of testimony and that applicable law requires judgment in its favor. ³ This burden must be discharged by submission of material admissible as evidence. ⁴ Assertions of fact in pleadings and memoranda, unauthenticated and unsworn documents, and uncertified copies of public records are not admissible in evidence and cannot be relied upon for the purposes of summary judgment.

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* * *

None of the exhibits appended to appellees' memorandum were sworn, certified or authenticated documents. However, both Ordinance No. 69-4 ⁵ and Supreme Court Order No. 12 ⁶-the only documents essential to the court's decree-were judicially noticeable under Civil Rule 43(a)(3). ⁷

While judicial notice permitted taking the essential facts as true without formal proof, the superior court ignored important procedural requirements of Rule 43. Preliminary to judicial notice, the court must announce its intentions to the parties and indicate for the record the particular facts to be taken as true. ⁸ This allows the parties to test both the propriety of noticing any fact and the truth of the matter to be established. ⁹

The superior court neither notified the parties nor identified for the record the documents to be relied upon. This was a violation of Civil Rule 43(a)(5). Nevertheless, we are convinced that in this case the error was narmless. On no occasion did appellants argue that the photocopies were inaccurate or that the original public records had been altered. ¹⁰ Even though the superior court did not observe proper procedure in taking judicial notice, its omission did not cause a failure of proof. In this setting, Civil Rule 61 ¹¹ requires that we treat the error as harmless. ¹² Accordingly, we reject appellants' claim that no cognizable documents at all were before the superior court. Not only were the essential public records subject to judicial notice, there was also a variety of sworn facts in the record.

This brings us to the central question of whether these facts establish the absence of any material issue of fact and show that the appellees are entitled to judgment as a matter of law.

II. DUE PROCESS

Appellants' due process claim arises from their assertion that as many as thirty-five per cent of patients at the service area hospital have been residents of communities outside the hospital service area. They argue that this shows an arbitrary and capricious exclusion of a substantial percentage of consumers from the service area denying them due process of law.

Substantive due process is denied when a legislative enactment has no reasonable relationship to a legitimate governmental purpose. ¹³ It is not a court's role to decide whether a particular statute or ordinance is a wise one; the choice between competing notions of public policy is to be made by elected representatives of the people. The constitutional guarantee of substantive due process assures only that a legislative body's decision is not arbitrary but instead based upon some rational policy.

A court's inquiry into arbitrariness begins with the presumption that the action of the legislature is proper. ¹⁴ The party claiming a denial of substantive due process has the burden of demonstrating that no rational basis for the challenged legislation exists. This burden is a heavy one, for if any conceivable legitimate public policy for the enactment is apparent on its face or is offered by those defending the enactment, the opponents of the measure must disprove the factual basis for such a justification.

When a due process claim is tested by a motion for summary judgment, the existence of facts known to the court which provide such a rational basis is sufficient by itself to establish that the statute or ordinance is not arbitrary, so long as the opponents of the legislation do not assert the contrary of those facts.

In the instant case, the borough assembly was aware that hospital facilities already existed in Seldovia. The superior court could reasonably have concluded that this fact provided a rational basis for the assembly's decision to exclude the Seldovia region from the service area. The burden then fell on appellants to demonstrate the lack of any rational basis in these facts. Yet, in response to the motion for summary judgment, no evidence tending to show that the drawing of boundaries was capricious was offered; appellants urged instead the erroneous proposition that appellees were required to prove that the ordinance was not arbitrary. A bare assertion that due process has been denied is not enough to withstand summary judgment. Appellants failed to show how the ordinance denied them substantive due process, and the superior court correctly granted summary judgment on the issue for appellees.

III. BOUNDARY DESCRIPTION

Ordinance No. 69-4 attempted to set out the boundaries of the service area by describing the southwestern portion of the Borough and then purporting to exclude from its area a section of the Kenai Peninsula lying south of Kachemak Bay. ¹⁵ Appellants contend that the description of the excluded area is so ambiguous and indefinite that the ordinance must be declared invalid and the hospital service area dissolved. ¹⁶

There is no doubt that the boundary description in Ordinance No. 69-4 is incomplete. The final three paragraphs purport to exclude an area south of a line following the southern shore of Kachemak Bay, but the description does not set out the point at which the line begins. The question which we address is whether the superior court correctly concluded that this description could be made definite by reference to other documents.

An ordinance expresses the legislative will of a borough. If its language is ambiguous or incomplete, an ordinance is to be construed on the same principles as a statute, ¹⁷ the primary rule being that a court should endeavor to ascertain and give effect to the intention of the legislative body. ¹⁸ The record in this litigation demonstrates a clear intent to exclude the Seldovia Recording District from the hospital service area. The minutes of the borough assembly meeting on February 4, 1969, state:

There was consideration of two ordinances. One to include Seldovia, English Bay, and Port Graham, and one to exclude this area.

Assemblyman Pace reported that he had been directed by the City Council to...