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Hickel et al v. Cowper (5/27/94), 874 P 2d 922
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
WALTER J. HICKEL, Governor )
of the State of Alaska, ) Supreme Court Nos. S-6294/6304
DARREL J. REXWINKEL, )
Commissioner of the )
Department of Revenue for ) Superior Court No.
the State of Alaska, and ) 3AN-93-6848 CI
the STATE OF ALASKA, )
)
Petitioners and ) O P I N I O N
Cross-Respondents, )
)
v. ) [No. 4089 - May 27, 1994]
)
STEVE COWPER, )
)
Respondent and )
Cross-Petitioner. )
______________________________)
Petitions for Review from the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, John Reese, Judge.
Appearances: James L. Baldwin, Stephen
C. Slotnick, Juneau, Jenifer A. Kohout,
Anchorage, Assistant Attorneys General, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioners and Cross-Respondents.
Douglas Pope, Thomas A. Ballantine, Wagstaff,
Pope & Katcher, Anchorage, for Respondent and
Cross-Petitioner.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
and Bryner, Justice, pro tem.*
MATTHEWS, Justice.
In Hickel v. Halford, ___ P.2d ___, Op. No. 4069 (April
4, 1994) (Halford), we addressed the meaning of the term
"administrative proceeding"as used in article IX, section 17 of
the Alaska Constitution.1 This is one of the terms which
describes state revenues which must be deposited into the budget
reserve fund. We are now required to interpret several other key
terms of section 17, including "amount available for
appropriation" and "amount appropriated for the previous fiscal
year." 17(b). These terms govern the legislature's ability to
withdraw from the budget reserve fund by a simple majority vote.
This case arises out of a legislative attempt to define
these terms. While final decision in Halford was pending, the
Alaska Legislature passed and Governor Hickel signed Senate
Committee Substitute for Committee Substitute for House Bill 58
(FIN) (the Act). Chapter 5, SLA 1994. Section 1 of the Act
amends AS 37.10 by adding new sections AS 37.10.410 and .420.
Alaska Statute 37.10.410 defines what money is received as a
result of the termination of an administrative proceeding under
article IX, section 17(a) of the Alaska Constitution. Alaska
Statute 37.10.420 defines several other key phrases and concepts
used in section 17, including "amount available for
appropriation," "amount appropriated for the previous fiscal
year," and "amount of appropriations made in the previous
calendar year for the previous fiscal year." Alaska Statute
37.10.420 also establishes the means by which appropriations from
the budget reserve fund are repaid.2 Section 2 of the Act states
that the provisions of section 1 "are declaratory of existing law
and represent the intent of the legislature when the Sixteenth
Alaska State Legislature passed [the resolution proposing the
constitutional amendment creating section 17]." Ch. 5 SLA 1994.
Following passage of the Act, the current respondent
and cross-petitioner, former Governor Steve Cowper, applied to
this court for a limited remand in the pending Halford case so
that he could challenge the constitutionality of the Act.3
Petitioners and cross-respondents, Governor Walter J. Hickel,
Commissioner of Revenue Darrel J. Rexwinkel, and the State of
Alaska (hereafter referred to as the State), applied to this
court for original jurisdiction to consider the constitutionality
of the Act. We granted a limited remand to the superior court so
that Gov. Cowper could move to amend his complaint in order to
challenge the constitutionality of the Act.4
On remand, the consolidated cases were severed and Gov.
Cowper was allowed to amend his complaint to allege that the Act
was unconstitutional. He then moved for partial summary judgment
on this question. The State also moved for a partial summary
judgment declaring the Act constitutional. The superior court
granted expedited consideration of the summary judgment motions.
Following briefing and oral argument, the court declared the Act
unconstitutional on April 8, 1994.5 In a written decision the
superior court held that AS 37.10.420 is unconstitutional because
it unduly limits the funds counted as available for
appropriation. The court explained that "[i]f a simple majority
vote can withdraw the funds . . . it is available for appropri
ation . . . [unless] it belongs to someone else . . . or would
not be there without the purpose and permission of the source."
The superior court also ruled that AS 37.10.420(b), which
provides for repayment of funds appropriated out of the budget
reserve, unconstitutionally limits the source of these funds.
The superior court did not attempt to identify which funds were
and were not available for appropriation under section 17(b).
The State petitioned this court for emergency review of
the superior court's decision with respect to AS 37.10.420. Gov.
Cowper cross-petitioned on the same issue. We granted both
petitions. After expedited briefing, we heard oral argument on
April 22, 1994.
I. STANDARD OF REVIEW
The State argues that this court should defer to the
legislature's interpretation of section 17. The State bases this
argument on a "strong presumption"in favor of legislative
interpretations, State ex rel. Udall v. Colonial Penn Ins. Co.,
812 P.2d 777, 783 (N.M. 1991), and the presumption that statutes
are constitutional, Bonjour v. Bonjour, 592 P.2d 1233, 1237
(Alaska 1979). Further, the disputed terms in section 17(b)
involve appropriations, and the power to appropriate is wholly
legislative, Alaska Const. art. IX, 13. The State misconstrues
the applicable standard of review.
The cases cited by the State do not support the
proposition that courts should defer to legislative
interpretations of ambiguous constitutional provisions. On the
contrary, in each of the cases cited by the State, the court
clearly is engaged in interpreting the constitutional provision.6
Nor does the legislature's role in making appropriations somehow
alter or increase its authority to define constitutional terms
merely because the terms contain the word "appropriation." This
court retains the same power to interpret constitutional terms
regardless of the subject matter of the term.7
This court's task, therefore, is identical to that
faced whenever a statutory enactment is claimed to run afoul of a
constitutional provision. "Questions concerning the constitution
ality of a statute are questions of law and are reviewed de
novo." Sun v. State, 830 P.2d 772, 775 n.4 (Alaska 1992). We
must first determine what the constitution actually means. The
proper interpretation of a constitutional provision is a question
of law to which this court applies its independent judgment.
Arco Alaska, Inc. v. State, 824 P.2d 708, 710 (Alaska 1992). We
then examine the statute to see whether it conflicts with the
constitutional requirement. "[S]tatutes should be construed if
reasonably possible to avoid the conclusion that they are
unconstitutional." Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska
1992).
The appropriate approach to interpreting language in
the Alaska Constitution is well established. "Constitutional
provisions should be given a reasonable and practical
interpretation in accordance with common sense. The court should
look to the plain meaning and purpose of the provision and the
intent of the framers." Arco Alaska, 824 P.2d at 710; see also
Kochutin v. State, 739 P.2d 170, 171 (Alaska 1987).
Because of our concern for
interpreting the constitution as the people
ratified it, we generally are reluctant to
construe abstrusely any constitutional term
that has a plain ordinary meaning. Rather,
absent some signs that the term at issue has
acquired a peculiar meaning by statutory
definition or judicial construction, we defer
to the meaning the people themselves probably
placed on the provision. Normally, such
deference to the intent of the people
requires "[a]dherence to the common
understanding of words."
Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d
162, 169 (Alaska 1991) (citations omitted) (quoting Division of
Elections v. Johnstone, 669 P.2d 537, 539 (Alaska 1983)).
II. DISCUSSION
A. "Amount Available for Appropriation"
The primary issue in this case is the meaning of the
term "amount available for appropriation"as used in article IX,
section 17(b) of the Alaska Constitution.8 The State asserts, in
accordance with the definition set forth in AS 37.10.420(a)(1),
that the "amount available for appropriation"consists only of 1)
unrestricted revenue accruing to the general fund during the
fiscal year; 2) general fund program receipts as defined in AS
37.05.146;9 3) the unreserved, undesignated general fund balance
carried forward from the preceding fiscal year; and 4) the
balance in the statutory budget reserve fund, AS 37.05.540. In
addition to the program receipts excluded under AS 37.05.146,
this definition excludes the funds listed in AS 37.05.146,
several other funds which have been established by the
legislature,10 and the surplus assets of public corporations.11
Gov. Cowper argues that the "amount available for appropriation"
includes the total amount accessible by the legislature,
including all of the funds and assets referred to above. Under
this argument, funds are available for appropriation so long as a
simple majority can make the funds available.
We reject both interpretations. The text of section 17
cannot support the State's narrow interpretation. However, Gov.
Cowper's position would require a complete restructuring of the
established financial system of the state government. We are
unwilling to add "missing terms"to the Constitution or to inter
pret existing constitutional language more broadly than intended
by the framers or the voters. Instead, we consider it
appropriate, as well as consistent with both the language of the
amendment and the intent of the framers, to focus on the legal
status of the various funds implicated in relationship to the
legislative power of appropriation. The "amount available for
appropriation"must include all funds over which the legislature
has retained the power to appropriate and which are not available
to pay expenditures without further legislative appropriation.
It must also include all amounts which the legislature actually
appropriates for the fiscal year, whether or not they could have
been considered available prior to the appropriation.
Our analysis of a constitutional provision begins with,
and remains grounded in, the words of the provision itself. We
are not vested with the authority to add missing terms or
hypothesize differently worded provisions in order to reach a
particular result.12 Our task is to identify the meaning that the
people probably placed on the term. Halford, Op. No. 4069, at
15. The dictionary definitions of the controlling words "amount"
and "available" provide a helpful starting point. Webster's
Third New International Dictionary defines "amount"as "a: the
total number or quantity . . .; b: the sum of individuals . . .;
c: the quantity at hand or under consideration." Id. at 72.
Relevant definitions of "available"are "3: such as may be
availed of: capable of use for the accomplishment of a purpose:
immediately utilizable . . . ; 4: that is accessible or may be
obtained . . . : at disposal esp. for sale or utilization." Id.
at 150.
From similar dictionary definitions, Gov. Cowper
paraphrases "amount available for appropriation"as meaning "the
total funds accessible by the legislature for appropriation." He
further interprets this paraphrase as meaning that all funds
which the legislature can make available to itself by a majority
vote, whatever their current use or designation, are "available
for appropriation."13 At the outer limits, this construction
would require that all net assets held by the State, however
liquid, be considered available in determining whether the amount
available was less than the amount appropriated for the previous
year.14 Such an expansive reading of the constitutional language
would render section 17(b) superfluous for all practical
purposes.15 It would also involve the adoption of a radically
different approach to government financing. Neither result is
consistent with the purpose of the amendment, the intent of the
framers, or extrinsic indications of the voters' probable
understanding of section 17's terms.
Section 17(b) allows a simple legislative majority to
use the constitutional budget reserve fund in order to make up
the difference between the "amount available for appropriation"
for a given fiscal year and the "amount appropriated for the
previous fiscal year." If net state assets are included in the
total amount available, then they would have to be actually
expended before the budget reserve fund could be reached by a
simple majority to keep spending at a constant level. Even if we
consider only net assets which exist in a cash form -- such as
the balances contained in any one of the State's several
revolving loan funds16 -- the existing state programs dependent on
these funds would have to be curtailed if these funds were
expended on another purpose. These funds are maintained,
however, because in the judgment of the legislature they serve
worthwhile purposes. Therefore, one of the uses the legislature
presumably would want to make of the newly available money would
be to reestablish these funds. Yet, to the extent that any of
these funds were started and funded before the previous year,
there would not be an equivalent appropriation in the previous
year to balance out the appropriation required in the present
year. Gov. Cowper's interpretation of section 17(b)'s majority
access formula would, in effect, require reductions in the level
of government service until no liquid funds remained before a
simple majority could reach the budget reserve.
One of the purposes of the budget reserve amendment,
however, was to provide a "stabilizing mechanism" in the
budgetary process.17 The formula in section 17(b), which compares
funds currently available to the amount appropriated for the
previous fiscal year, and allows simple majority appropriation
from the budget reserve fund to the extent necessary "to provide
for total appropriations equal to the amount of appropriations
made in the previous calendar year for the previous fiscal year,"
Alaska Const. art. IX, 17(b), reflects this purpose and clearly
anticipates use of the budget reserve fund to maintain "equal"
appropriation levels from year to year. Gov. Cowper's
interpretation is inconsistent with this purpose because it would
only allow simple majority access to the budget reserve fund if
all state programs involving cash funds were eliminated or if
state spending were reduced by the total amount retained in such
funds.
Similarly, both the legislative history of section 17
and extrinsic evidence of the voter's understanding of the
amendment's provisions indicate that elimination of state
services and/or liquidation of state assets was not considered a
necessary prerequisite to simple majority access to the budget
reserve. Both Representative Rieger and Representative Brown
stated in committee that if revenues declined, a simple majority
could appropriate from the fund to make up the difference.18
Statements in the voter pamphlet indicated similar conditions to
appropriation. The statement in support of the amendment in the
voter pamphlet states:
The Legislature will be able to spend
money from the Budget Reserve only if:
ú revenues are less than the amount
appropriated the previous year, in which case
money could be appropriated from the Budget
Reserve in an amount not to exceed the
shortfall[.]
. . .
At the very least, this ballot measure
will establish a savings account that can
help minimize the effects of a "boom" one
year, and a "bust"the next.
The statement in opposition expresses a similar understanding:
Under paragraph (b) of the proposed
constitutional change, a simple majority in
the legislature could "borrow"funds from the
reserve, to make up any shortfall in
revenues, up to the amount appropriated in
the previous year.
(Emphasis eliminated.)
These statements demonstrate that Gov. Cowper's
expansive reading of "amount available for appropriation"is not
consistent with the purpose of the amendment or the probable
understanding of the drafters and voters.
On the surface, these statements may appear to support
the State's interpretation of "amount available for
appropriation"as including only revenues received by the State
within the fiscal year.19 This interpretation is, however,
plainly inconsistent with the language of section 17(b). If the
drafters of the amendment had intended that a decline in revenues
alone would trigger access, it would have been easy to formulate
a test which compared current revenues to prior revenues. The
formula in section 17(b), however, compares the "amount available
for appropriation" to the amount previously appropriated. In
order to accept the various secondary indications of the people's
possible understanding as dispositive, it would be necessary to
read "amount available for appropriations" as meaning only
current revenue. Yet it is clear that in the normal functioning
of state government, other funds are routinely available
including, at a minimum, the general fund balance carried
forward. Nor is an understanding that the reserve fund could be
reached by a simple majority when revenues decline necessarily
inconsistent with requiring some standing funds to be considered
available for appropriation. The State concedes that the
statutory budget reserve and the general fund balance would have
to be considered available. See 37.10.420(a)(1)(C)-(D).
Eliminating even these funds from the calculation would allow
majority access to the budget reserve whenever there was even the
slightest decline from year to year in revenues, even if in the
prior year a huge sum was left unappropriated or placed in the
statutory budget reserve. The language of section 17 and the
purposes behind the establishment of the fund do not support such
easy access.
The flaw in Gov. Cowper's analysis of the text of
section 17(b) is in his assumption that "available"can only mean
"accessible by any means." The dictionary definitions of the
word indicate narrower meanings which are more consistent with
the purpose and intent of the provision and with the probable
understanding of the voters. As quoted above, one of the defini
tions of "available"is "immediately utilizable,"indicating that
the ease with which funds may be accessible is a factor in
determining their availability. This is in accord with a common
sense understanding of section 17. As demonstrated above, the
purpose and common understanding of the language in section 17(b)
allows the budget reserve to be used by a simple majority as
necessary to maintain state appropriations at a constant level.
Although all funds might be available by some means, counting
funds already validly appropriated to a specific purpose as still
"available" would disrupt existing state programs and would
constitute an inflexible constitutional intrusion on the
legislature's authority to evaluate the wisdom of particular
appropriations. Although such a constitutional intrusion is
conceivable, we are unwilling to read it into a provision with
quite a different purpose.
It is far more reasonable to interpret "amount
available for appropriation" in light of the relative
consequences of and circumstances attendant in making
appropriations from different sources. In this light, monies
which already have been validly committed by the legislature to
some purpose should not be counted as available.20 In addition,
illiquid assets owned by the state are not available so long as
they remain illiquid. Given the "stabilizing"purpose of the
amendment, it would make little sense to interpret section 17 as
requiring the costly and time-consuming process of liquefying
state assets before allowing majority access to the
constitutional budget reserve fund. See supra note 14. The
"amount available for appropriation"would include, however, all
monies from which the legislature can make an appropriation and
which require a legislative appropriation before they can be
expended, as well as any amount which would not otherwise be
counted as "available"but from which the legislature does in
fact appropriate. This interpretation is consistent with the
stabilizing purpose of section 17 and with the extrinsic evidence
of the voter's understanding of the amendment. Most importantly,
it is consistent with the text of section 17(b), as it is based
on a reasonable and practical interpretation of the words of that
section, in accordance with common sense.21
This definition necessarily includes all amounts
which are in fact appropriated for a fiscal year, including
"trust receipts."22 There is nothing in the text or history of
section 17 which would justify classifying money actually
appropriated as unavailable for appropriation.23
The State argues that "[s]ound policy"requires that
these trust receipts be excluded because they "are not available
for discretionary appropriation by the legislature." Even if we
were to agree that policy considerations favored a system which
compared only amounts available for discretionary appropriation
to the previous year's appropriations from such amounts, we
could not impose that policy choice on a differently worded
constitutional provision.
Moreover, it is not clear that excluding these receipts
would constitute a better policy. The appropriations made from
these receipts represent a significant portion of state spending.
The purposes to which these funds are restricted include many
core state government functions, including education, health,
social services, public safety, and transportation. See State of
Alaska, Dep't of Revenue, Revenue Sources Book (Fall 1993) at 54
(listing historical grants-in-aid by category). Because these
funds are an integral part of the State's annual spending,
changes in the amounts received would certainly affect other
budget decisions. Policy considerations therefore appear to
favor including trust receipts in the amount available, so that,
for example, declines in federal funding might result in
increased access to the budget reserve fund. The budget reserve
amendment does anticipate that all budget decisions be made in
relation to one another. We need not choose between these
alternative policies, however. Regardless of which policy
argument is in fact more compelling, the text of section 17(b)
clearly requires that all funds which are in fact appropriated be
counted as "available for appropriation."
The key question in applying our interpretation of the
term "amount available for appropriation"to particular funds24 is
what constitutes a valid appropriation such that the funds
involved are no longer available. "Appropriation"is defined as
something that has been appropriated;
specif.: a sum of money set aside or allotted
by official or formal action for a specific
use (as from public revenue by a legislative
body that stipulates the amount, manner, and
purpose of items of expenditure).
Webster's Third New Int'l Dictionary 106 (1969). Black's Law
Dictionary defines "appropriation"as
[t]he act of appropriating or setting
apart; prescribing the destination of a
thing; designating the use or application of
a fund . . . .
In governmental accounting, an
expenditure authorized for a specified
amount, purpose, and time.
. . . .
Public law. The act by which the
legislative department of government
designates a particular fund, or sets apart a
specified portion of the public revenue or of
the money in the public treasury, to be
applied to some general object of
governmental expenditure, or to some
individual purchase or expense. Authority
given by legislature to proper officers to
apply distinctly specified sum from
designated fund out of treasury in given year
for specified object or demand against the
state.
Black's Law Dictionary 101-02 (6th ed. 1990); see generally
McAlpine v. University of Alaska, 762 P.2d 81, 87-88 (Alaska
1988) (discussing definitions of "appropriation").
In Thomas v. Rosen we cited with approval the following
definition of appropriation by the Wisconsin Supreme Court:
An appropriation is the setting aside
from the public revenue of a certain sum of
money for a specified object, in such manner
that the executive officers of the government
are authorized to use that money, and no
more, for that object, and no other.
569 P.2d 793, 796 (Alaska 1977) (quoting State ex rel. Finnegan
v. Dammann, 264 N.W. 622, 624 (Wis. 1936)). Finally, in City of
Fairbanks v. Fairbanks Convention and Visitors Bureau, in
determining that a local initiative did not make an
appropriation, we asked "whether the initiative would set aside
a certain specified amount of money or property for a specific
purpose or object in such a manner that is executable, mandatory,
and reasonably definite with no further legislative action." 818
P.2d 1153, 1157 (Alaska 1991).
Under these definitions, it is clear that one of the
fundamental characteristics of an appropriation, in the public
law context, is that it authorizes governmental expenditure
without further legislative action. Therefore, funds established
by the legislature which may be used to pay state expenditures
without further legislative action are not available for
appropriation, to the extent that expenditures are authorized.
This is true regardless of whether the fund is nominally
established within the general fund or within a state agency.
For example, the oil and hazardous substance release response
fund is a restricted fund within the general fund. AS 46.08.010.
The commissioner of environmental conservation is authorized to
use money from the fund to
(1) investigate and evaluate the
release or threatened release of oil or a
hazardous substance, and contain, clean up,
and take other necessary action, such as
monitoring and assessing, to address a
release or threatened release of oil or a
hazardous substance that poses an imminent
and substantial threat to the public health
or welfare, or to the environment.
AS 46.08.040(a). The entire balance of the fund could
potentially be used by the commissioner of environmental
conservation under this provision without any further
authorization by the legislature.25 In addition, AS 46.08.040(b)
authorizes the governor to use money from the fund to respond to
an oil or hazardous substance discharge emergency during the
effective period of such an emergency declared under AS
26.23.020(c). Because the legislature has made the entire
balance of this fund available for expenditure, the amounts
deposited into the fund are validly appropriated and therefore no
longer available for appropriation.
On the other hand, funds which require further
legislative appropriation before expenditures can be made against
them are available for appropriation. Thus, the Railbelt energy
fund, AS 37.05.520, the Alaska marine highway system vessel
replacement fund, AS 37.05.550, and the educational facilities
maintenance and construction fund, AS 37.05.560, remain
"available for appropriation,"within the meaning of section
17(b). Each of these funds has the same general structure. Each
is established as a "restricted"fund within the general fund,
and each consists of money "appropriated" to it by the
legislature. AS 37.05.520, .550(a), .560(a). These initial
appropriations, however, are not sufficient to support any
expenditure. Further legislative appropriations are necessary.
See AS 37.05.520 ("The legislature may appropriate money from the
fund for programs, projects, and other expenditures to assist in
meeting Railbelt energy needs, including projects for
retrofitting state-owned buildings for and facilities for energy
conservation."); AS 37.05.550(a) ("The legislature may
appropriate money from the fund for refurbishment of existing
state ferry vessels, or replacement of retired or outmoded state
ferry vessels."); AS 37.05.560(b) ("Money in the fund may be
appropriated (1) to finance the design, construction, and
maintenance of public school facilities; and (2) for maintenance
of University of Alaska facilities.").26 Because the initial
"appropriations" to these funds cannot support any expenditure,
the money in these funds remains "available for appropriation"
until further appropriations are made.27
A similar analysis applies to the permanent fund
earnings reserve account (earnings reserve account), AS
37.13.145. This fund is established as a separate account within
the permanent fund under the authority of the last sentence of
Article IX, 15 of the Alaska Constitution: "All income from
the permanent fund shall be deposited in the general fund unless
otherwise provided by law." AS 37.13.145(a) provides otherwise:
"The earnings reserve account is established as a separate
account in the fund. Income from the fund shall be deposited by
the corporation into the account as soon as it is received."
Therefore, money in the earnings reserve account never passes
through the general fund, and is never appropriated as such by
the legislature.
A percentage of the money in the reserve account is
automatically transferred to the dividend fund at the end of each
fiscal year. AS 37.13.145(b). After that transfer has been
made, an additional amount is transferred from the earnings
reserve account to the principal of the permanent fund in order
to "offset the effect of inflation on principal of the fund." AS
37.13.145(c). No regular provision is made for amounts in the
earnings reserve account in excess of that necessary to fund
dividends and inflation proof the permanent fund principal.
Absent an appropriation, this excess accumulates from year to
year. The unencumbered balance of this account was $1.087
billion as of February 28, 1994.
The balance remaining in the earnings reserve account
each year after the dividend and inflation-proofing transfers
have been made is liquid, has never been appropriated by the
legislature, and is not subject to expenditure without further
legislative action. There are no statutory or constitutional
prohibitions against direct appropriations from this account.28
The earnings reserve account is therefore available for
appropriation.29
Alaska Statute 37.10.420 fails to include several funds
-- including trust receipts, "restricted"accounts within the
general fund which require further legislative appropriation
before they can be expended, and the permanent fund earnings
reserve account -- in the "amount available for appropriation"
which are in fact available within the meaning of article IX,
section 17 of the Alaska Constitution. It therefore does not
provide an accurate definition of the constitutional term.
Therefore, although we differ from the superior court in our
analysis of the "amount available for appropriation,"we affirm
the superior court's decision declaring AS 37.10.420(a)(1)
unconstitutional.
In summary, the "amount available for appropriation"
within the meaning of article IX, section 17 of the Alaska
Constitution includes all monies over which the legislature has
retained the power to appropriate and which require further
appropriation before expenditure. In addition, all amounts
actually appropriated, whether or not they would have been
considered available prior to appropriation, are available within
the meaning of section 17. Illiquid assets, such as land and
unexploited natural resources, are not available so long as they
remain illiquid. For these reasons, trust receipts are available
for appropriation, as are funds like the Railbelt energy fund and
the educational facilities maintenance and construction fund,
which are not available for expenditure without additional
appropriations. In contrast, the oil and hazardous substance
release response fund is not counted as available because the
entire balance of the fund may be expended at any time without
further legislative action. The availability of funds not
specifically discussed in this opinion must be determined in
accordance with this opinion. Finally, the permanent fund
earnings reserve account must be counted as available for
appropriation, because appropriations may be made from it and it
is not subject to expenditure without legislative action.
B. "Amount appropriated for the previous fiscal year"
The meaning of the term "amount appropriated for the
previous fiscal year"in article IX, section 17(b) of the Alaska
Constitution follows logically from the definitions of the word
"appropriation"listed above. The "amount appropriated for the
previous fiscal year" means all amounts set aside for the
previous fiscal year by the legislature "for a specific purpose
or object in such a manner that is executable, mandatory, and
reasonably definite with no further legislative action."
Fairbanks Convention and Visitors Bureau, 818 P.2d at 1157. In
short, the "amount appropriated" includes every dollar
appropriated by the legislature, whatever its source.30 Because
our definition of the amount available for appropriation includes
all amounts actually appropriated, it is unnecessary to exclude
artificially any amount actually appropriated from the "amount
appropriated" in order to achieve symmetry in the comparison.
The State correctly argues that this symmetry is necessary in
order to insure that the comparison required by section 17(b)
fairly measures the need for access to the budget reserve fund.
Contrary to the State's argument, however, symmetry can be
obtained without abandoning the plain meaning of the words used
in the constitution. Because AS 37.10.420(a)(2) does not include
all actual appropriations made for the previous fiscal year in
the "amount appropriated for the previous fiscal year,"it does
not accurately reflect the meaning of the constitutional term.
We therefore affirm the superior court's decision declaring AS
37.10.420(a)(2) unconstitutional.
C. "Amount of appropriations made in the previous
calendar year for the previous fiscal year"
Alaska Statute 37.10.420(a)(3) defines the "amount of
appropriations made in the previous calendar year for the
previous fiscal year"in terms of the unconstitutionally limited
number of appropriation sources identified in subsection (a)(2)
of the statute, which itself relies primarily on the sources
identified in subsection (a)(1). It cannot be severed from these
subsections and therefore is also unconstitutional, as the
superior court properly held.
This term is meant to prevent the legislature from
increasing prior year appropriations in order to increase access
to the budget reserve in the present year.31 Other than its
unduly narrow interpretation of what counts as an appropriation,
the definition of the term in AS 37.10.420(a)(3) appears to be
consistent with this purpose. The "amount of appropriations made
in the previous calendar year for the previous fiscal year"means
the amount of all appropriations made in the calendar year in
which the previous fiscal year began.
D. Constitutionality of AS 37.10.420(b)
Alaska Statute 37.10.420(b) designates the means by
which appropriations from the budget reserve fund are paid back
to the fund. Article IX, 17(d) provides:
If an appropriation is made from the
budget reserve fund, until the amount
appropriated is repaid, the amount of money
in the general fund available for
appropriation at the end of each succeeding
fiscal year shall be deposited in the budget
reserve fund. The legislature shall
implement this subsection by law.
Pursuant to the authority granted it by 17(d), the legislature
enacted AS 37.10.420(b), which provides:
If the amount appropriated from the
budget reserve fund has not been repaid under
art. IX, sec. 17(d), Constitution of the
State of Alaska, the Department of
Administration shall transfer to the budget
reserve fund the amount of money compromising
the unreserved, undesignated general fund
balance to be carried forward as of June 30
of the fiscal year, or as much as necessary
to complete the repayment. The transfer
shall be made on or before December 16 of the
following fiscal year.
This definition excludes restricted funds within the general fund
from the calculation of the amount available to pay back
appropriations from the budget reserve fund. As discussed above,
some of these funds remain "available for appropriation" within
the meaning of section 17.32 Although the constitution gives the
legislature authority to implement subsection (d), the
legislature's authority must be exercised within the constraints
of subsection (d)'s own requirements. Because AS 37.10.420 fails
to consider all amounts which are "available for appropriation"
within the meaning of section 17 in determining the State's
repayment obligation, it is unconstitutional. The superior
court's decision declaring AS 37.10.420(b) unconstitutional is
therefore affirmed.
III. CONCLUSION
The decision of the superior court is AFFIRMED, for the
reasons stated in this opinion.
_______________________________
* Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 Article IX, section 17 provides as follows:
Budget Reserve Fund. (a) There is
established as a separate fund in the State
treasury the budget reserve fund. Except for
money deposited into the permanent fund under
Section 15 of this article, all money
received by the State after July 1, 1990, as
a result of the termination, through
settlement or otherwise, of an administrative
proceeding or of litigation in a State or
federal court involving mineral lease
bonuses, rentals, royalties, royalty sale
proceeds, federal mineral revenue sharing
payments or bonuses, or involving taxes
imposed on mineral income, production, or
property, shall be deposited in the budget
reserve fund. Money in the budget reserve
fund shall be invested so as to yield
competitive market rates to the fund. Income
of the fund shall be retained in the fund.
Section 7 of this article does not apply to
deposits made to the fund under this
subsection. Money may be appropriated from
the fund only as authorized under (b) or (c)
of this section.
(b) If the amount available for
appropriation for a fiscal year is less than
the amount appropriated for the previous
fiscal year, an appropriation may be made
from the budget reserve fund. However, the
amount appropriated from the fund under this
subsection may not exceed the amount
necessary, when added to other funds
available for appropriation, to provide for
total appropriations equal to the amount of
appropriations made in the previous calendar
year for the previous fiscal year.
(c) An appropriation from the
budget reserve fund may be made for any
public purpose upon affirmative vote of three-
fourths of the members of each house of the
legislature.
(d) If an appropriation is made
from the budget reserve fund, until the
amount appropriated is repaid, the amount of
money in the general fund available for
appropriation at the end of each succeeding
fiscal year shall be deposited in the budget
reserve fund. The legislature shall
implement this subsection by law.
2 AS 37.10.420 provides:
(a) For purposes of applying art. IX,
sec. 17(b), Constitution of the State of
Alaska,
(1) "the amount available for
appropriation" or "funds available for
appropriation"means
(A) the unrestricted revenue
accruing to the general fund during the
fiscal year;
(B) general fund program
receipts as defined in AS 37.05.146;
(C) the unreserved,
undesignated general fund balance carried
forward from the preceding fiscal year that
is not subject to the repayment obligation
imposed by art. IX, sec. 17(d), Constitution
of the State of Alaska; and
(D) the balance in the
statutory budget reserve fund established in
AS 37.05.540;
(2) "the amount appropriated for
the previous fiscal year"means the amount
appropriated from the
(A) constitutional budget
reserve fund under the authority granted in
art. IX, sec. 17, Constitution of the State
of Alaska; and
(B) same revenue sources used
to calculate the money available for
appropriation for the current fiscal year;
and
(3) "the amount of appropriations
made in the previous calendar year for the
previous fiscal year"means appropriations
made from sources identified in (2) of this
subsection for a fiscal year that were
enacted during the calendar year that ends on
December 31 of that same fiscal year.
(b) If the amount appropriated from the
budget reserve fund has not been repaid under
art. IX, sec. 17(d), Constitution of the
State of Alaska, the Department of
Administration shall transfer to the budget
reserve fund the amount of money comprising
the unreserved, undesignated general fund
balance to be carried forward as of June 30
of the fiscal year, or as much of it as is
necessary to complete the repayment. The
transfer shall be made on or before December
16 of the following fiscal year.
(c) In this section, "unrestricted
revenue accruing to the general fund" or
"unreserved, undesignated general fund
balance carried forward" is money not
restricted by law to a specific use that
accrues to the general fund according to
accepted principles of governmental or fund
accounting adopted for the state accounting
system established under AS 37.05.150 in
effect on July 1, 1990.
(d) An appropriation under art. IX, sec.
17(b), Constitution of the State of Alaska,
requires an affirmative vote of the majority
of the members of each house of the
legislature. An appropriation under art. IX,
sec. 17(c) requires an affirmative vote of
three-fourths of the members of each house of
the legislature.
3 See Halford, Op. No. 4069 at 6-12, for a full statement
of the earlier proceedings in this case.
4 This court does not possess original jurisdiction over
the case. AS 22.05.010. In addition, no Alaska court could
normally adjudicate an action by the State seeking to have a
statute declared constitutional, in the absence of the willing
participation of a truly adverse party. See Greater Anchorage
Area Borough v. City of Anchorage, 504 P.2d 1027, 1036 (Alaska
1972) ("Parties seeking a judicial determination of a
hypothetical, advisory or moot question will be denied relief.").
5 The superior court found AS 37.10.410 unconstitutional
based on an inconsistency between the statute and this court's
interpretation of the term "administrative proceeding" in
Halford. The State does not challenge this portion of the
court's decision in this petition.
6 See Heckendorn v. City of San Marino, 723 P.2d 64, 67
(Cal. 1986) ("We must determine what the term 'ad valorem tax'
means in Article XIII A."); Amador Valley Joint Union High Sch.
Dist. v. State Bd. of Equalization, 583 P.2d 1281, 1300 (Cal.
1978) (en banc) (discussing rules of construction used by courts
in interpreting constitutional provisions); State ex rel. Udall
v. Colonial Penn Ins. Co., 812 P.2d 777, 782-83 (N.M. 1991) ("We
interpret our constitution to carry out its spirit."); Coronado
Oil Co. v. Grieves, 603 P.2d 406, 411 (Wyo. 1979) ("Though the
legislature's interpretation of the constitution is not binding
on the supreme court, we would be loath to interpret the
constitution otherwise. We must give weight to legislative
interpretation, though not conclusive.") (citations omitted).
7 The legislature's interpretation of the constitutional
terms at issue in this case may be considered more persuasive
than otherwise because of its greater familiarity with
appropriations. Deference in such circumstances is at most,
however, a single tool for use by this court in interpreting the
constitution. If the legislature adopted AS 37.10.420
contemporaneously with its approval of the Legislative Resolve
No. 129 (eventual Article IX, section 17), that would be
considered a significant indication of the actual meaning of
section 17. A statement by the Eighteenth Legislature of the
intent of the Sixteenth Legislature would not bear great weight
even if the subject was the meaning of a statute; the applicable
degree of deference is lessened by the fact that at issue is the
meaning of a constitutional amendment for which the legislature
is not the ultimate adopting authority. Our discussion of the
weight to be afforded a subsequent legislative statement of the
meaning of an earlier statute in Hillman v. Nationwide Mut. Fire
Ins. Co., 758 P.2d 1248, 1252-53 (Alaska 1988), is relevant here.
While the legislature is fully empowered
to declare present law by legislation, it is
not institutionally competent to issue
opinions as to what a statute passed by an
earlier legislature meant. If the
legislature were in some form to declare its
opinion as to the meaning of prior law, that
declaration would be entitled to the same
respect that a court would afford to, for
example, an opinion of a learned commentator;
that is, the court would examine the
reasoning offered in support of the opinion
and either reject or accept it based on the
merit of the reasons given. . . . It is
possible to argue that the legislature has
knowledge superior to a disinterested
commentator because there may be some
legislators in the current legislature who
were also members of the legislature which
passed the prior law and thus have special
insight into the intent of the legislature.
However, the force of this is dispelled when
one considers that it is not permissible to
allow a legislator to testify on the question
of his unexpressed legislative intent or on
the unexpressed legislative intent of others.
Id. (citing Kenai Peninsula Borough Sch. Dist. v. Kenai Peninsula
Educ. Ass'n, 572 P.2d 416 (Alaska 1977)).
8 As preliminary matters, Gov. Cowper argues that the
statutes are invalid irrespective of their substantive content
because (1) they violate the separation of powers doctrine; (2)
they constitute an impermissible attempt by the legislature to
influence an ongoing judicial controversy; (3) they intrude on
the judicial realm of constitutional interpretation; and (4) the
statute violates article IX, section 7's prohibition against
dedicated funds. The "influencing"claim pertains entirely to AS
37.10.410 and therefore is not relevant to the present petitions
which deal exclusively with AS 37.10.420. The "intrusion on the
judicial realm"argument is without merit.
Gov. Cowper's argument that the Act establishes a
dedicated fund is also without merit. Although the Act defines
certain funds as not available for appropriation under section
17(b), it does not prohibit the executive branch from requesting
that these funds be reassigned to different purposes or the
legislative branch from allocating these funds differently.
Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska 1992). In
addition, because the Act does not dedicate any state revenue to
any particular fund, it cannot implicate the prohibitions of
section 7. Therefore, these funds are not made dedicated funds
by virtue of the Act.
9 AS 37.05.146 provides:
In AS 37.05.142 -- 37.05.146 and AS
37.07.080, "program receipts" means fees,
charges, income earned on assets, and other
state money received by a state agency in
connection with the performance of its
functions; all program receipts except the
following are general fund program receipts:
(1) federal receipts;
(2) University of Alaska receipts
(AS 14.40.491);
(3) individual, foundation, or
corporation gifts, grants, or bequests that
by their terms are restricted to a specific
purpose;
(4) receipts of the following
funds:
(A) highway working capital fund
(AS 44.68.210);
(B) correctional industries fund
(AS 33.32.020);
(C) loan funds;
(D) international airport revenue
fund (AS 37.15.430);
(E) funds managed by the Alaska
Housing Finance Corporation (AS 18.56.020),
the Alaska Railroad Corporation (AS
42.40.010), the Municipal Bond Bank Authority
(AS 44.85.020), the Alaska Aerospace
Development Corporation (AS 14.40.821), or
the Alaska Industrial Development and Export
Authority (AS 44.88.020);
(F) fish and game fund (AS
16.05.100);
(G) school fund (AS 43.50.140);
(H) training and building fund (AS
23.20.130);
(I) retirement funds (AS 14.25, AS
22.25, AS 26.05.222, AS 39.35, and former AS
39.37);
(J) permanent fund (art. IX, sec.
15, Alaska Constitution);
(K) public school fund (AS
37.14.110);
(L) second injury fund (AS
23.30.040);
(M) fishermen's fund (AS
23.35.060);
(N) FICA administration fund (AS
39.30.050);
(O) receipts of the employee
benefits program established under AS
39.30.150 -- 39.30.180;
(P) receipts of the deferred
compensation program established under AS
39.45;
(Q) clean air protection fund (AS
46.14.260);
(R) receipts of the group insurance
programs established under AS 39.30.090.
(5) receipts of or from the trust
established by AS 37.14.400 -- 37.14.450,
except reimbursements described in AS
37.14.410.
10 These additional funds include the Railbelt energy
fund, AS 37.05.520, the Alaska marine highway system vessel
replacement fund, AS 37.05.550, the educational facilities
maintenance and construction fund, AS 37.05.560, the oil and
hazardous substance release response fund, AS 46.08.010, the
power cost equalization and rural electric capitalization fund,
AS 42.45.100, the power project fund, AS 42.45.010, the Alaska
science and technology endowment, AS 37.17.020, and the permanent
fund earnings reserve account, AS 37.13.145.
11 In 1985, the Department of Law issued an informal
opinion, written by Assistant Attorney General James L. Baldwin,
which concluded that "unrestricted money in the [Alaska Housing
Finance Corporation] revolving fund is probably available for
appropriation." 1985 Informal Op. Att'y Gen. 307 at 309
(emphasis added). The Opinion recommended that the statute
governing the Alaska Housing Finance Corporation (AHFC) be
amended to specifically authorize interim transfers of
unrestricted surplus assets of AHFC to the general fund and to
provide that the board of directors annually determine the amount
of surplus available for transfer. Id. at 310-11.
The statutes governing the AHFC and the Alaska
Industrial Development and Export Authority (AIDEA) now require
each organization to annually determine whether it has assets in
excess of the amount required to fulfill its purposes. See AS
18.56.089(b)(1); AS 44.88.205(b)(1). Each organization must
present this determination to the legislature by January 10 of
each year. AS 18.56.089(b)(2); AS 44.88.205(b)(2); See Ch. 12
SLA 1991.
12 On this basis alone, we must reject the State's plea to
convert the term "amount available for appropriation,"as used in
section 17(b), to either "amount available for appropriation from
the [unrestricted] general fund"or "revenues available for
appropriation." If the definition of "amount available for
appropriation" in AS 37.10.420 is to withstand constitutional
scrutiny, it must be because it is in conformity with the text of
section 17(b), and not because section 17(b) is missing words
which would make it conform to AS 37.10.420.
13 The State argues that the "common understanding"of the
phrase "available for appropriation"is more limited. It states
that the term should have the same meaning in the Constitution
that it has in the budget process, meaning only "revenue sources
customarily considered by the legislature." The State asserts
that only unrestricted revenues are so considered. To be
distinguished are "restricted revenues,"the use of which is
restricted in some way, usually by the source of the funds,
predominately the federal government.
The State never asserts or shows evidence, however,
that the term "available for appropriation"is actually used in
any particular way in the budget process. Rather, it argues that
the term "should be interpreted with reference to revenue sources
customarily considered by the legislature when it considers the
state budget." It is also not clear that the legislative
definition of "amount available for appropriation"includes all
monies "customarily considered by the legislature." Although it
probably does include all revenues customarily considered, it may
not include all amounts so considered.
14 Gov. Cowper does limit his argument to cash funds,
presumably because of the relative ease with which cash funds can
be converted to different purposes, as compared to illiquid
assets. This is a reasonable limitation. Although we have held,
in a different context, that property other than money may be
"appropriated," see McAlpine v. University of Alaska, 762 P.2d
81, 87-89 (Alaska 1988), it does not follow that it is
necessarily "available for appropriation"within the meaning of
section 17(b).
There does not appear to be any significant difference,
however, in the type of legislative action necessary to reach
cash funds and less liquid state assets. Gov. Cowper's
interpretation therefore recognizes that "available,"as used in
section 17(b), requires more than mere accessibility.
15 Under this interpretation, if state assets are in
excess of annual appropriations, even a total lack of revenue
would not allow a simple majority to withdraw from the budget
reserve fund.
16 See, e.g., AS 03.10.040 (agricultural revolving loan
fund); AS 14.43.090 (scholarship revolving loan fund); AS
14.43.630 (teacher scholarship revolving loan fund); AS 16.10.340
(commercial fishing revolving loan fund); AS 42.45.010 (power
project fund); AS 42.45.250 (bulk fuel revolving loan fund); AS
44.29.210 (alcoholism and drug abuse revolving loan fund); AS
44.88.400 (small business economic development revolving loan
fund); 45.95.060 (small business revolving loan fund); AS
45.98.010 (historical district revolving loan fund).
17 See, e.g., Testimony of budget officer Mary Halloran,
House Finance Comm. TR. 37, May 1, 1990.
18 See Statement of Rep. Rieger, H. Finance Comm., HFC
tape 90-97, tr. at 31 (May 3, 1990) ("[I]f oil prices went to $9,
it would take a simple majority to use the Budget Reserve Fund to
bring you back to what you had last year."); Statement of Rep.
Brown, Id. at 30 ("[T]o get back to last year's spending level, a
simple majority could appropriate from the budget reserve.").
19 The State asserts that this reading is further
supported by newspaper descriptions of the amendment prior to the
1990 general election. Some of the statements in these articles
do support the State's position:
If State revenues decline, money could
be taken out to fill the gap. For example,
let's say our state earned $2.5 billion in
fiscal year 1995. For some reason, such as a
drop in production or a drop in price, we
earned just $1.5 billion in fiscal year 1996.
The legislature could tap into the Budget
Reserve Fund to make up the gap.
"Vote Yes on Ballot Measure No. 1,"Fairbanks Daily News-Miner,
Nov. 2, 1990, at 4; see also John Enders, "Cowper pushes for
economic stability in form of state budget reserve fund," Juneau
Empire, Oct 25, 1990, at 3; John Enders, "Budget Reserve-Account
Would Cushion State Revenue,"Anchorage Daily News, Oct. 28,
1990, at M16; John Enders, "Ballot measure would set up budget
reserve,"Fairbanks Daily News-Miner, Oct. 22, 1990, at 6 ("[I]f
state revenues fell from one year to the next the Legislature
could tap the reserve to make up the difference."). These
articles cannot, however, control over contrary wording in the
constitution.
20 To do otherwise would be to continue to count sums of
money as "available for appropriation"after they have been
appropriated, so long as they have not been paid out or converted
from cash to some other type of asset. Instead, we recognize
that any given sum of money can only be appropriated once during
a given time period. Of course, if an appropriation lapses or if
the legislature does in fact reappropriate money from an excluded
fund to another purpose, it is no longer necessary to exclude
that money from the "amount available for appropriation"in order
to protect the legislature's authority to make such decisions.
21 This interpretation is related to the State's argument
that AS 37.10.420 properly excludes "restricted funds" because
those funds, at least in part, have already been appropriated.
We reject, however, the State's conception of relevant fund
restrictions and the State's definition of when an amount has
been validly appropriated. Therefore, our definition of the
"amount available for appropriation" includes several funds
excluded by the statutory definition.
22 "Trust receipts"include all funds, whatever the
source, which the State can only use for a specific stated
purpose under applicable law. The largest "trust receipt"
category is federal funding, which may only be appropriated by
the State for the purposes prescribed by the federal government.
Private entities may also grant the State money to use for
specific purposes. State appropriations from trust accounts,
such as the Public Employees Retirement Fund, for purposes
relating to the trust, such as fund administration, are also
properly characterized as trust receipts. Although the amount of
the appropriation is apparently set by the legislature, it must
be made in accordance with trust principles. Therefore, the
amount which the legislature appropriates in accordance with
trust principles is the amount available to the legislature for
such appropriation. Finally, amounts appropriated by the
legislature out of other funds within executive agencies for
purposes of administering these funds, under explicit statutory
authority, may also be treated as a type of trust receipt. See,
e.g., AS 03.10.040(b) (agricultural revolving loan fund); AS
16.10.340 (commercial fishing revolving loan fund); AS
45.95.060(j) (small business revolving loan fund). Although
these funds are not trust funds, the statutes do limit
legislative authority to appropriate from them.
23 Money appropriated from the AHFC and the AIDEA
therefore must be counted as available for appropriation.
However, money which either organization determines to be in
excess of the amount required to fulfill its purposes, see AS
18.56.089(b)(1); AS 44.88.205(b)(1), should not be counted unless
actually appropriated to another purpose or transferred to the
general fund. The statutes do not automatically transfer these
funds out of the respective organizations.
24 In this regard, the State argues that the question of
whether funds outside the unrestricted general fund are
"available for appropriation"is "not justiciable in a court of
law." To the extent the State argues that this court cannot
decide the meaning of the term "available for appropriation" or
the legal status of different funds under this definition, its
position is without merit. The meaning of the constitution and
its application to particular facts are questions squarely within
the jurisdiction and inherent power of the judiciary. "[T]he
judicial branch of government has the constitutionally mandated
duty to ensure compliance with the provisions of the Alaska
Constitution, including compliance by the legislature." Malone
v. Meekins, 650 P.2d 351, 356 (Alaska 1982). The State's error
is in assuming that the "power of appropriation necessarily
includes the power to determine what amounts are available to
finance appropriations enacted." Compare Abood v. Gorsuch, 703
P.2d 1158, 1161-62 (Alaska 1985) ("What quorum is necessary for
the confirmation votes is a question of Alaska constitutional
law. It is therefore a question to which the nonjusticiability
doctrine does not apply."). Although the court cannot say what
particular funds should be used for appropriations, or set the
amount of appropriations, it can and must determine the status of
particular funds when such a determination is necessary for
constitutional interpretation or enforcement.
The State is correct, however, insofar as it asserts
that decisions to appropriate certain funds and withdraw other
appropriations are political questions. All this means, however,
is that the court cannot second guess the wisdom of individual
appropriation or non-appropriation decisions. This limitation
supports a definition of "available for appropriation"which does
not require amounts validly appropriated to specific purposes to
be counted. As these amounts have already been appropriated,
counting them as available is functionally equivalent to
questioning the wisdom of the original appropriation.
25 AS 46.08.040 lists eight other purposes for which the
commissioner of environmental conservation may use money from the
fund. See AS 46.08.040(a)(2)-(7) and (d)(1)-(2). Except as
provided for in AS 46.08.040(d)(1), however, expenditures for
these purposes are limited to amounts available from
appropriations made specifically for the purposes listed. AS
46.08.040(c). AS 46.08.040(d)(1) provides that the commissioner
of environmental conservation shall, upon request of the Alaska
Legislative Council, "use money from the fund to reimburse the
Alaska Legislative Council for expenditures that it makes for the
operation of the Citizens' Oversight Council on Oil and Other
Hazardous Substances."
26 The lists of specific purposes in each statute for
which these second appropriations "may" be made are not
sufficient to make the assignment of money to these funds
"appropriations." Further appropriations are necessary before
expenditures can be made. In addition, we have previously
recognized that statutory statements that the legislature "may"
appropriate money from funds within the general fund for specific
purposes "impose no legal restraint on the appropriations power
of the legislature." Sonneman v. Hickel, 836 P.2d 936, 939-40
(Alaska 1992).
27 In a hybrid situation, where expenditures can be made
from part but not all of a fund, the fund is not available for
appropriations to the extent that it is subject to expenditure
without further legislative approval. We express no opinion on
the possible status of funds which technically are subject to
full expenditure, but which are funded well beyond any reasonably
expectable need, as there is no evidence in the record before us
that any such fund exists.
We also make no attempt to name and classify as
"available" or "unavailable"every fund within the treasury of
the State of Alaska. We leave it, in the first instance, to
executive and legislative branch officials more familiar with all
of the funds involved to apply the general definition we adopt
today.
28 In a May 1990 memorandum describing the budget reserve
amendment, budget officer Mary Halloran states that the amount
available for appropriation includes "all revenue sources, such
as permanent fund earnings, federal funds and other restricted
funds."
In addition, the language of section 17, and
specifically the difference in language between sections 17(b)
and (d), suggests that at least some funds outside the general
fund may be available for appropriation. Compare 17(b) ("the
amount available for appropriation for a fiscal year") with
17(d) ("the amount of money in the general fund available for
appropriation").
29 In oral argument before the superior court, the State
argued that the earnings reserve account should not be considered
available because, under current projections of the Alaska
Permanent Fund Corporation, the entire balance will be used for
dividend payments and inflation proofing by the year 2010. This
argument rests on reasoning similar to that which prompted us to
conclude that the oil and hazardous substance release response
fund was not available for appropriation: the entire account may
be expended without further legislative action. Unlike the
release response fund, which may be needed for expenditure at any
time, the earnings reserve account balance will not be used for
many years to come. In the meantime, there are no restrictions
on its use. Something more than a possibility of future use is
necessary before a fund is considered no longer available for
appropriation.
30 This amount would include appropriations made from the
constitutional budget reserve fund. It would not include
"appropriations" made to funds from which additional
appropriations are necessary before expenditures can be made. If
the legislature both appropriates money into a fund which is not
available for appropriation and removes money from the same fund
to appropriate to a different purpose in the same year, the
amounts should be offset so that the same amount of money is not
counted twice in determining the total amount appropriated.
31 See Halloran memorandum, at 5 ("The phrase 'in the
previous calendar year' was inserted by the House Finance
Committee specifically to preclude stratagems whereby a
supplemental appropriation to the current fiscal year . . . could
be made in order to increase the allowable size of a Budget
Reserve Fund appropriation for the fiscal year being budgeted.")
32 We see no reason to give "available for appropriation"
a different meaning in subsection (d) than we did in subsection
(b). We recognize, however, that the payback provision in
section 17(d) is limited to only those funds which are "available
for appropriation"and "in the general fund." Thus, available
amounts outside the general fund, such as the earnings reserve
account, need not be deposited in the budget reserve. This
additional limitation has no effect on funds which exist within
the general fund.
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