Opinion
No. A-09134, A-9391.
July 28, 2006.
Appeal from the District Court, Third Judicial District, Palmer, William H. Fuld, J., and David L. Zwink, Magistrate.
Chadwick P McGrady, Law Office of Chadwick McGrady P C, Palmer.
Christine S Schleuss, Law Office of Christine Schleuss, Anchorage.
Nicholas Spiropoulos, Assistant Borough Attorney, Palmer.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
Order
In Stevens v. Matanuska-Susitna Borough, Alaska App. Opinion No. 2051, 142 P.3d 222, 2006 WL 1720111 (June 23, 2006), we affirmed Appellant Stevens's convictions in two cases for violating a Matanuska-Susitna Borough noise ordinance. Stevens had challenged the Borough ordinance on several grounds. We declined to resolve one of Stevens's claims — his claim that the Borough lacked the statutory authority to enact the noise ordinance — because we concluded that Stevens had not adequately briefed the issue.
Stevens filed a petition for rehearing, asking us to reconsider that decision. He now wishes to supplement his briefing so that the issue can be decided on the merits.
When Stevens raised this claim in district court, he relied on a specific statute: AS 29.35.210. He pointed out that this statute gave the Borough discretion to exercise a number of municipal powers — but that it did not give the Borough the authority to regulate noise.
The Borough conceded this point. It responded that the authority to enact the noise ordinance was found elsewhere in the Alaska Statutes — in AS 29.40.040(a), the statute defining the Borough's authority to regulate the use of land within its borders.
The trial magistrate agreed that the noise ordinance was a proper exercise of the Borough's land-use power, and issued a written order explaining his reasoning.
When Stevens raised this claim on appeal to this Court, he did not address the trial court's ruling. Instead, he repeated, essentially verbatim, the argument he made in district court — even though the Borough had already conceded his point.
In asking us to reconsider our conclusion that this amounted to inadequate briefing, Stevens notes that he cited authority in support of his argument. But the authority Stevens cited was irrelevant to the only disputed issue before this Court: whether the noise ordinance was a proper exercise of the land-use power conferred by AS 29.40.040(a). Stevens did not cite that statute anywhere in his briefs. And although he responded to questions on this issue at oral argument, that was too late to preserve his claim for appeal. Cf. Adamson v. University of Alaska, 819 P.2d 886, 889 (Alaska 1991).
It is well-settled that "[f]ailure to argue a point constitutes an abandonment of it." State v. O'Neill Investigations, Inc., 609 P.2d 520, 528 (Alaska 1980). Even if we were to accept (as the Borough did) Stevens's claim that AS 29.35.210 does not give the Borough authority to enact a noise ordinance, we can not, in the absence of adversarial briefing, fairly resolve the larger and more complex question of whether the Borough has any authority under the Alaska Statutes to issue the ordinance.
Stevens argues that we should permit supplemental briefing on this issue. But the cases he cites in support of this argument involve either an unrepresented litigant or a party who, for whatever reason, failed to respond at all to a motion filed by the opposing party. Stevens was represented by counsel, and he filed briefs in two cases. When he filed those briefs, he had notice of all the arguments and rulings made in district court.
Accordingly, in consideration of the Petition for Rehearing filed on July 3, 2006,
IT IS ORDERED:
The Petition for Rehearing is DENIED.
Entered at the direction of the court.