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Sonneman v. Hickel and the State of Alaska (8/14/92), 836 P 2d 936
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JOSEPH SONNEMAN, )
) Supreme Court No. S-4372
Appellant, )
) Trial Court No.
v. ) 1JU-90-800 Civil
)
GOVERNOR HICKEL, THE STATE ) O P I N I O N
OF ALASKA, AND OTHER STATE )
OFFICERS AND EMPLOYEES, )
) [No. 3876 - Aug. 14, 1992]
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, First Judicial District,
Juneau,
Larry R. Weeks,
Judge.
Appearances: Joseph A. Sonneman, pro
se, Juneau. Jack B. McGee, Assistant
Attorney General, Charles E. Cole, Attorney
General, Juneau, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
MATTHEWS, Justice.
This case challenges the act which created the Alaska
Marine Highway System Fund, ch. 193, 1, SLA 1990, AS 19.65.050-
100, on the grounds that the fund is dedicated to a special
purpose in violation of article IX, section 7 of the Alaska
Constitution. The trial court ruled that the act was
constitutional because it merely "`allows' the legislature to
appropriate funds from the fund to the Alaska Marine Highways but
does not require it." We conclude that most of the act is
constitutional, that the limitation on departmental power to
request that the fund be appropriated for capital improvements
violates article IX, section 7, and that this section is
severable from the rest of the act.
Briefly, the act1 establishes the Alaska Marine Highway
System Fund as a special account in the general fund. AS
19.65.060(a). The Alaska Marine Highway System, the entity
responsible for the state's ferries, must deposit the gross
revenue obtained from operating the ferry system into this
account. The legislature "may appropriate"amounts from the fund
back to the Alaska Marine Highway System. AS 19.65.080(a). In
addition, the Department of Transportation and Public Facilities
(DOTPF), within which the Marine Highway System is contained, may
request that the legislature appropriate money from the fund to
the Marine Highway System for capital improvements if certain
conditions are met. First, the legislature must have made an
annual appropriation from the fund. Second, the fund, without
regard to the appropriation, must exceed the total of gross
revenues plus non-lapsable general fund appropriations by ten
percent. Finally, the request for capital appropriations may not
exceed fifty percent of the balance remaining after the annual
appropriation is made. AS 19.65.080(a)&(b).
The stated purposes of the fund are to "enhance
performance and accountability,""provide the management tools
necessary to efficiently operate"and, "within constitutional
constraints, provide for a predictable funding base for system
operations." AS 19.65.050(b). The legislature evidently
intended that the Marine Highway System operate under constraints
and incentives based partially on the revenues generated by the
Marine Highway System. In order for this to work, there must be
a reasonable expectation that the revenues generated by the
system can be used by the system.
Section 7 of article IX of the Alaska Constitution
provides: "The proceeds of any state tax or license shall not be
dedicated to any special purpose . . . ."2 The question is
whether the act violates this constitutional prohibition.3
The constitutional convention committee which drafted
the prohibition on the dedication of funds commented that the
reason for the prohibition is to preserve control of and
responsibility for state spending in the legislature and the
governor.
Even those persons or interests who seek
the dedication of revenues for their own
projects will admit that the earmarking of
taxes or fees for other interests is a fiscal
evil. But if allocation is permitted for one
interest the denial of it to another is
difficult, and the more special funds are set
up the more difficult it becomes to deny
other requests until the point is reached
where neither the governor nor the
legislature has any real control over the
finances of the state. In one Rocky Mountain
state the legislature is free to appropriate
only 17 per cent of the tax collections; the
rest are dedicated. In Alaska at present, 27
per cent of territorial funds are earmarked,
primarily for school construction and roads.
6 Proceedings of the Alaska Constitutional Convention (PACC)
Appendix V at 111 (Dec. 16, 1955).
Without earmarked funds, the constitutional framers
believed that the legislature would be required to decide funding
priorities annually on the merits of the various proposals
presented. Delegate Barrie White, the spokesman for the
committee which drafted section 7, stated in the convention
debates:
[t]he Committee feels that if you accept
the principle of not earmarking, it puts
everyone in the same position and that the
legislature will then be in the position
being able to decide each case on its merits.
If you go the other route and allow for
earmarking or start drawing up all the
exceptions that everybody would want to have
drawn up, you are then back to the situation
that most states now find themselves in,
where an ever-increasing percentage of their
revenues are earmarked for special purposes
and an ever-decreasing amount is available to
the general fund.
4 PACC 2364 (Jan. 17, 1956). Delegate White was then engaged in
a colloquy about the appropriation of funds collected through
licenses to agencies which had collected them:
Delegate Gray: "It doesn't earmark it
but the talking point that these
organizations have for the use of this money
that is rightfully theirs, why, they haven't
been precluded, they just have to sell their
viewpoint to the legislature and if they need
the money, why they probably could get it if
they could talk them into it."
Delegate White: "They have to sell
their viewpoint along with everybody else."
Id. at 2367.
The principle on which the act is based, that the
administrators of the Alaska Marine Highway System and the
legislature will treat the fund as if the Marine Highway System
had a right to its proceeds, is inconsistent with the model
contemplated by the anti-dedication clause, under which the
disposition of all revenues will be decided anew on an annual
basis. Nevertheless, the expectations created by the act are
merely a "talking point"because they impose no legal restraint
on the appropriation power of the legislature.
The act clearly states that the fund is part of the
general fund and it may not be spent until and unless it is
appropriated by the legislature. AS 19.65.060(b).4 However,
Sonneman argues that the act prohibits the legislature from
appropriating money from the fund to government purposes other
than the Marine Highway System. Although there is no explicit
prohibition, Sonneman contends that there is an implicit one
based on a maxim of statutory construction and on various
expressions of intent found in the legislative history. The
State contends that the act does not prohibit the legislature
from using money in the fund for any purpose and, more generally,
that the act is basically only an accounting tool designed to
give a clear picture of Marine Highway System revenues to the
legislature and to the Marine Highway System administrators. We
turn first to Sonneman's statutory construction argument.
Since the act states that "the legislature may
appropriate amounts from the . . . fund to the . . . marine
highway system," AS 19.65.080(a), Sonneman argues that by
implication the legislature may not appropriate amounts from the
fund for any other purpose. This argument is based on the maxim
expressio unius est exclusio alterius, meaning the expression of
one thing implies the exclusion of others. While this maxim is
often a useful and logical guide to the meaning of an enactment,
it does not always apply. We declined to apply it in Chevron
USA, Inc. v. LeResche, 663 P.2d 923, 930-31 (Alaska 1983),
finding that the limitation which would result if the maxim were
utilized was contrary to the purpose of the statute. Similarly,
in the present case it seems clear that the enactment was not
intended to legally restrict the power of the legislature to
appropriate money from the fund for any purpose. Such a
restriction would amount to a dedication of the fund for a
special purpose, and given the holding in Alex, the fund would be
in violation of the anti-dedication clause. Alaska Statute
19.65.060(b), however, states that nothing in the act "dedicates
[Fund money] for a specific purpose." Therefore AS 19.65.080(a)
is best read as not implying a prohibition on legislative
appropriation of fund money to other than Marine Highway System
purposes. This conclusion is bolstered by the rule of
interpretation that statutes should be construed if reasonably
possible so as to avoid a conclusion that they are unconstitu
tional. State v. Fairbanks North Star Borough, 736 P.2d 1140,
1142 (Alaska 1987).
Sonneman also argues that various comments made by
legislators in the process of enactment of the act indicate an
intent to use fund revenues only for marine highway purposes.
See AS 19.65.050(b)(1), infra note 1. While there are many such
comments,5 there are also a number of statements that the fund
would be legally unrestricted and could be appropriated by the
legislature for any purpose.6 As noted, the act expressly states
that it does not dedicate money for a specific purpose. The
mixed legislative history is insufficiently persuasive to require
a construction of the act at variance with its apparent plain
meaning. See Alex, 646 P.2d at 208-09 n.4 ("the plainer the
language, the more convincing contrary legislative history must
be").
While the act as we construe it does not restrict the
authority of the legislature to appropriate money from the fund,
the act is more than merely a legislatively mandated system of
accounting. It does restrict executive authority to seek
appropriations from the fund. See AS 19.65.080(b). This
restriction on DOTPF's authority to request the appropriation of
money for capital improvements violates article IX, section 7.
One method of dedicating funds is to preclude the
legislature from appropriating designated funds for any reason
other than a designated purpose. Another less direct method
would be to preclude agencies from requesting monies from
designated funds or revenue sources. The constitutional clause
prohibiting dedicated funds seeks to preserve an annual
appropriation model which assumes that not only will the
legislature remain free to appropriate all funds for any purpose
on an annual basis, but that government departments will not be
restricted in requesting funds from all sources. As the debates
make clear, all departments were to be "in the same position" as
competitors for funds with the need to "sell their viewpoint
along with everyone else." 4 PACC 2364-67 (Jan. 17, 1956). We
conclude therefore that the limitations on the ability of DOTPF
to ask for funds from the Marine Highway System Fund expressed in
AS 19.65.080(b) amount to a dedication in violation of article
IX, section 7.
The question which follows is whether the entire act
should be declared unconstitutional or whether AS 19.65.080(b)
may be severed from the rest of the act.
The Alaska Statutes contain a general severability
clause:
Any law heretofore or hereafter
enacted by the Alaska legislature which lacks
a severability clause shall be construed as
though it contained the clause in the
following language, "If any provision of this
Act, or the application thereof to any person
or circumstance is held invalid, the
remainder of this Act and the application to
other persons or circumstances shall not be
affected thereby."
AS 01.10.030. This clause is said to create a weak presumption
in favor of severability. Lynden Transport, Inc. v. State, 532
P.2d 700, 712 (Alaska 1975). "A provision will not be deemed
severable `unless it appears both that, standing alone, legal
effect can be given to it and that the legislature intended the
provision to stand, in case others included in the act and held
bad should fall.'" Id. at 713 (quoting Dorchy v. Kansas, 264
U.S. 286, 290 (1924). The key question is whether the portion
remaining, once the offending portion of the statute is severed,
is independent and complete in itself so that it may be presumed
that the legislature would have enacted the valid parts without
the invalid part. Jefferson v. State, 527 P.2d 37, 41 (Alaska
1974). In our view, the enactment in question clearly meets this
test. After AS 19.65.080(b) is deleted, the remainder of the act
still has the same meaning that it had with that subsection
included. The deleted subsection is a minor part of the overall
act and it is difficult to imagine any reason why the legislature
which passed the act would not have also favored the act with
.080(b) deleted.
For the foregoing reasons, we affirm the judgment in
part, reverse the judgment in part, and remand for entry of a
judgment declaring that AS 19.65.080(b) violates article IX,
section 7 of the Alaska Constitution, but the remainder of the
act does not.7
_______________________________
1 AS 19.65.050 provides in part:
(b) It is the purpose of AS
19.65.050 - 19.65.100 to
(1) enable the Alaska marine
highway system to manage and operate in a
manner that will enhance performance and
accountability by allowing the system to
account for and spend its generated revenue;
(2) provide the management tools
necessary to efficiently operate the Alaska
marine highway system;
(3) within constitutional
constraints, provide for a predictable
funding base for system operations; and
(4) provide for predictability and
stability in the service level furnished to
communities served by the system.
AS 19.65.060 provides:
(a) There is created, as a special
account in the general fund, the Alaska
marine highway system fund, into which shall
be deposited
(1) the gross revenue of the Alaska
marine highway system;
(2) money that is appropriated to
the Alaska marine highway system fund by the
legislature in an amount that is consistent
from year to year and is the amount necessary
. . . to provide stable services to the
public . . . ; and
(3) any other money that is
appropriated to the Alaska marine highway
system fund by the legislature . . . .
(b) Nothing in this chapter exempts
money deposited into the Alaska marine
highway system fund from the requirements of
AS 37.07 (Executive Budget Act) or dedicates
that money for a specific purpose.
AS 19.65.080 provides:
[O]n an annual basis and under AS 37.07
(Executive Budget Act), the legislature may
appropriate amounts from the Alaska marine
highway system fund to the Alaska marine
highway system.
(b) The Department of
Transportation and Public Facilities may
request the legislature to appropriate money
from the Alaska marine highway system fund to
the marine highway system for capital
improvements, if
(1) the appropriation under (a) of
this section has been made;
(2) the amount in the fund, without
regard to the appropriation under (a) of this
section, exceeds the total of gross revenue
deposited in the fund and the general fund
appropriations under AS 19.65.060(a)(2) by 10
percent; and
(3) the amount requested for
appropriation under this subsection does not
exceed 50 percent of the balance remaining
after the appropriation for annual management
and operations is made under (a) of this
section.
(c) The unexpended and unobligated
balance of money appropriated from the Alaska
marine highway system fund lapses into the
Alaska marine highway system fund at the end
of the fiscal year for which it was appropri
ated.
2 The section proceeds: "except as provided in section 15
of this article [creating the Permanent Fund] or when required by
the federal government for state participation in federal
programs. This provision shall not prohibit the continuance of
any dedication for special purposes existing upon the date of
ratification of this section by the people of Alaska." Alaska
Const. art. IX, 7.
3 Even though the revenues generated by the Marine Highway
System are derived from the transportation of passengers and
freight and not from state taxes or licenses as those terms are
usually understood, the State does not argue that section 7 does
not apply to the Marine Highway Fund. This is doubtlessly
because this court in State v. Alex, 646 P.2d 203 (Alaska 1982),
construed section 7 to prohibit the dedication of "any source of
revenue." Id. at 210. We have no occasion to question this
construction in the present case.
4 AS 37.07.030, which is part of the Executive Budget Act
referred to in AS 19.65.060(b), requires that the legislature
annually adopt a budget authorizing all proposed expenditures of
the state government. Expenditures by the Marine Highway System
from the Marine Highway System Fund are within this requirement.
5 The bill's prime sponsor testified that "[t]he intent of
the bill is to allow the Marine Highway System to use the
revenues it generates . . . ." Sen. Jim Duncan, Senate Transp.
Comm. Hearings on Senate Bill (SB) 428, Feb. 20, 1990,
Legislative Storage and Information Retrieval System (STAIRS) No.
STRA90022013 at 11. Chairman of the Senate Transportation
Committee Lloyd Jones commented that he felt better about the
fact that the legislature would be able to earmark the program
receipts. Sen. Lloyd Jones, id. at 20. The House Finance Co-
Chairman noted that the purpose of the legislation would be to
create a restricted fund within the general fund. The restricted
fund would originate from proceeds of the program receipts earned
by the state ferry system in order to be used the following year.
Rep. Ron Larson, House Fin. Comm. Hearings on House Bill (HB) 439
& SB 428, April 29, 1990, STAIRS No. HFIN90042912 at 4.
6 Sen. Jim Duncan, Senate Fin. Comm. Hearings on SB 428,
March 8, 1990, STAIRS No. SFIN90030809 at 29; Alaska Marine
Highway System Director Jim Ayers, id. at 19; Gov. Cowper's
Transmittal Letter to Legislature, Jan. 24, 1990.
7 The other points raised on appeal by Sonneman, including
his claim under 42 U.S.C. 1983, clearly lack merit.
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