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Alaskans for Legislative Reform et al v. J. Coghill (12/30/94), 887 P 2d 960
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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
ALASKANS FOR LEGISLATIVE )
REFORM, and EDWARD A. ) Supreme Court No. S-5717
BURKE, JR., )
)
Appellants, )
) Superior Court No.
v. ) 3AN-92-7079 CI
)
STATE OF ALASKA, and ) O P I N I O N
LT. GOVERNOR JOHN B. )
COGHILL, )
)
Appellees. ) [No. 4158 - December 30, 1994]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Brian Shortell,
Judge.
Appearances: Mary Louise Molenda,
Ruskin & Molenda, Anchorage, for Appellants.
Virginia B. Ragle, Assistant Attorney
General, Bruce M. Botelho, Attorney General,
Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
PER CURIAM
The appended opinion of the Honorable Brian Shortell,
Superior Court Judge, is adopted as the opinion of this court.1
The judgment is AFFIRMED.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT
ALASKANS FOR LEGISLATIVE REFORM, )
AND EDWARD A. BURKE, JR., )
)
Plaintiffs, )
)
vs. )
)
STATE OF ALASKA, AND LT. GOVERNOR )
JOHN B. COGHILL, )
)
Defendants. )
___________________________________)
Case No. 3AN-92-7079 CI
MEMORANDUM DECISION
AND ORDER
Article II, section 2 of the Alaska Constitu
tion sets qualifications for legislators. It provides:
A member of the
legislature shall be a qualified
voter who has been a resident of
Alaska for at least three years and
of the district from which elected
for at least one year, immediately
preceding his filing for office. A
senator shall be at least twenty-
five years of age and a
representative at least twenty-one
years of age.
Article II, section 3 of the Alaska
Constitution establishes terms of office for
legislators: "The term of representatives shall be two
years, and the term of senators, four years. One-half
of the senators shall be elected every two years."
Disqualifications for legislators are also
set by the constitution. Article II, section 5
provides that no legislator may hold "any other
position of profit under the United States or the
State," and no legislator may obtain "any other
position of profit"which was created or for which the
salary or benefits were increased during the term for
which the legislator was elected and for one year
thereafter. Also, certain convicted felons and persons
of "unsound mind" are disqualified in article V,
section 2.
The plaintiffs in this case support an
initiative proposal which would, if passed by state
voters, limit terms of members of the Alaska
legislature to two consecutive senate terms, four
consecutive house terms, or eight consecutive years in
any combination of house or senate service. Terms
would be "consecutive"under the initiative unless they
were at least eight years apart.
Acting on the advice of the attorney general,
Lieutenant Governor Coghill denied certification of the
initiative application because he believed that the
proposed term limits could only be established by
constitutional amendment.2 The plaintiffs now
challenge that denial, contending that the state
constitution does not require a constitutional
amendment to limit legislative terms. They seek a
declaration that the initiative process may be used to
establish term limits and an order directing the
Lieutenant Governor to certify the initiative
application.
The issue raised, therefore, is clear: Does
the state constitution allow the use of the initiative
process to establish term limits for state legislators?
Although this issue has not been decided in Alaska,
debate on this and similar questions is not new.
Federal and state courts have reviewed and resolved
cases raising virtually identical issues. In addition,
this case arises in the context of extensive historical
development. Thus, although the newly-arisen term-
limits movement in Alaska and the United States has
given the debate renewed attention, analytical princi
ples leading to appropriate resolution of the issues
raised in this case are well-established.
Two somewhat conflicting principles are
central to this case. The first is the general
principle that the constitution is the basic law of the
state; the second is that constitutional and statutory
principles should be liberally construed to further the
goal of allowing the people to vote and express their
will.3 Consideration should be given to
interpretations that would render an initiative
constitutional,4 but if a proposed initiative cannot be
reconciled with state constitutional provisions, the
right of the people to legislate by initiative must
give way to constitutional restrictions.5 And although
liberal construction of initiative proposals is the
general rule, constitutional limitations on the
initiative power must also be broadly interpreted.6
The judicial task in this case, therefore, is to
determine the meaning and scope of the Alaska
Constitution's legislative qualifications provisions.
If those provisions are exclusive, the people have no
power to enact term limits which would conflict with
them; if they are not exclusive, the initiative
proposal should be certified.7
Article II, sections 2, 3, and 5 of the
Alaska Constitution contain no language limiting the
number of terms a legislator may serve, although other
constitutional terms are explicitly limited.8 The
constitution gives the legislature the power to impose
additional qualifications and terms for judicial
officers, but it does not do so for any other branch of
the state government. This suggests that the framers
of the state constitution did not intend to include
term limits as qualifications for legislative office.
Discussions by members of the Alaska
constitutional convention would also seem to indicate
their belief that qualifications set out in the
constitution would not be subject to change by the
legislature or by initiative absent specific
constitutional authority.9 The delegates' statements
should also be placed in context; they had at the time
of the constitutional convention a wealth of political
and judicial history to support their remarks.10
Political debate regarding the necessity of
fixed and unmodifiable (except by constitutional
amendment) legislative qualifications dates back to
sixteenth century England. "[O]n the eve of the
Constitutional convention, English precedent stood for
the proposition that 'the law of the land had regulated
the qualifications of members to serve in parliament'
and those qualifications were 'not occasional but
fixed.'"11 The same proposition was strongly stated by
American constitutional delegates both before and after
the federal constitutional convention. James Madison,
for example, argued at the convention that allowing the
federal legislature to establish its own qualifications
would be to vest "an improper and dangerous power in
the Legislature. The qualifications of electors and
elected were fundamental articles in a Republican
Government and ought to be fixed by the Constitution."12
After the constitutional convention,
Alexander Hamilton stated the principle explicitly:
"The qualifications of the persons who may choose or be
chosen, as has been remarked upon other occasions, are
defined and fixed in the Constitution, and are
unalterable by the legislature."13
Alaska delegates voiced similar opinions at
the state constitutional convention. Mr. Hellenthal:
"Whatever we agree on here will be the qualifications
which will not be subject to change by the
legislature." Mr. McLaughlin: "I don't believe that
the legislature can change these qualifications or add
to them."14
These delegates had ample support for their
opinions. Beyond the historical analysis and
fundamental political doctrine their remarks spring
from, judicial opinion on this constitutional issue was
almost unanimously in agreement with their remarks. At
the time of Alaska's constitutional convention, in
fact, the view that constitutionally-prescribed
qualifications were exclusive had prevailed in nearly
every state court which had considered the issue prior
to the adoption of Alaska's constitution in 1956.
Buckingham v. State ex rel. Killoran, 35 A.2d 903 (Del.
1944); see also State ex rel. Palagi v. Regan, 126 P.2d
818 (Mont. 1942); Imbrie v. Marsh, 71 A.2d 352 (N.J.
1950).15
It can be argued, of course, that the
prevailing view was wrong, that later political and
judicial developments have shown the flaws in its
logic, and that the state constitution should not be
interpreted consistently with it. This argument is, in
fact, at the center of plaintiffs' attack on Lieutenant
Governor Coghill's refusal to certify the initiative.
Plaintiffs contend that "terms" are
"preconditions"and not "qualifications." Both words
are similar in meaning, and the dictionary definition
of the word "qualification"does little to resolve this
quandary.16 Courts and commentators construing the word
tend to slide past this definitional problem when
deciding whether a particular requirement is or is not
a "qualification."
For example, in 1969 the United States
Supreme Court, in Powell v. McCormack,17 decided that
the House of Representatives could not exclude a duly-
elected member even though it found that he had
committed illegal and fraudulent acts during his
previous term. The court held that as Powell "was not
ineligible to serve under any provision of the
Constitution, the House was without power to exclude
him from its membership."18 "Qualifications"are not
defined in the opinion, but they are equated with
"eligibility"or "standing qualifications."19
And in Storer v. Brown,20 the Court, in a
footnote, held that no unconstitutional qualifications
were imposed by a California statute which required
independent candidates for Congress and president and
vice president to be politically disaffiliated for at
least one year before the election and to have filed
nomination papers signed by at least five percent but
not more than six percent of the vote cast in the
preceding general election. Once again the Court,
although recognizing that a candidate who did not meet
the statutory test would be "disqualified," did not
explain why the statute's requirements were not
"additional qualifications."21
State courts grappling with the same issue
have also been wary of trying to define the word.22 As
the writer of a recent law review article has said:
No court has explicitly
defined the term "qualification"in
an election context. . . .
Courts have approached
the question of what constitutes
"qualifications"for office in two
different ways. First, some courts
directly confront the action
(usually a state statute) limiting
candidates' and voters' rights.
They determine if the action rises
to such a level as to constitute a
qualification for office. If it
does, they strike it down as
unconstitutionally adding a
"qualification" for office per
Powell. If the statute's
provisions do not rise to the
requisite level, it is deemed
constitutional under the state
regulation clause . . . . State
courts addressing state election
statutes have also uniformly
addressed the issue of
qualifications directly . . . .
Courts have also examined
the issues of qualifications by
analyzing whether particular state
election statutes violate the equal
protection clause of the fourteenth
amendment or the first amendment
free speech clause . . . .23
Thus, under the direct approach, although
"qualifications" may not be defined precisely, the
ultimate issue can be resolved by determining whether,
in view of the language of the Alaska Constitution, the
historical context of its enactment, and pertinent case
law, the term limits imposed by plaintiffs' initiative
rise to "such a level as to constitute a qualification
for office."
This initiative, if enacted, would impose
very substantial limitations on the right of the people
to choose their lawmakers and the right of candidates
to run for office. It would categorically disqualify
certain candidates for a period of eight years. It
does not, as some court-approved statutes do, further
the purpose of valid regulatory efforts such as
campaign-disclosure laws24 or corrupt-practices laws.25
It would bar all candidates not eligible for office
according to its terms. The disqualification imposed
would be direct and attributable to a desire to
discourage incumbency rather than to regulate the
process of elections,26 or the conduct of candidates
holding other governmental offices,27 or to achieve on
the state level the essential purpose of a provision of
the constitution other than the qualifications clause.28
It would impose what one court has called a "flat
disqualification,"29 one which the candidate cannot
avoid even, for example, by a write-in vote.30
The Alaska Supreme Court has struck down as
violative of the federal constitution's qualifications
clause a state statute which would have imposed a
categorical barrier to candidacy for federal office.
In Benesch v. Miller, 446 P.2d 400 (Alaska 1968), the
court concluded that the Alaska legislature could not
enact a law that would invalidate all write-in votes
for a senatorial candidate who had lost in his party's
most recent primary election. Thus, in answering this
federal qualifications question, the court used the so-
called "direct" approach, and unequivocally rejected
the offending statute. It would seem unlikely that the
court would be any less critical of the initiative here
in analyzing its effect under the state qualifications
clause.
The Alaska court has recognized the
distinction between statutes which "eliminate" a
candidate,31 and those which would void a particular
election because of corrupt practices committed by a
successful candidate in that election. In State v.
Marshall, 633 P.2d 227 (Alaska 1981), the court upheld
a statutorily-mandated forfeiture of office for
violations of Alaska's campaign disclosure law, saying:
Our premise is that a valid
election is an obvious, if
unstated, constitutionally-based
eligibility requirement for
membership in a legislative body
[citing cases]. The legislature's
authority to proscribe certain
campaign practices and to promote
fair elections . . . logically and
necessarily implies the power to
have unfair elections set aside.32
This distinction between temporary or one-
time disqualification of a candidate versus permanent
or long-term disqualification is a thread that runs
through the qualifications-clause cases. Thus, a state
"resign to run"statute has been upheld because it did
not actually bar a candidate from office. Rather, it
simply required the candidate to sacrifice the security
of the public office presently held for the prospect of
obtaining a different position.33 And corrupt-practices
statutes which void elections during which the
violations occur have been held to be constitutional,34
while similar statutes which would have imposed substan
tial future periods during which the violators would
have been disqualified from candidacy or election have
been struck down.35
When the plaintiffs' initiative is analyzed
appropriately, it is clear that the limitations it
would impose on candidates' and voters' rights are
"qualifications" as that term has been used by
constitutional delegates, political thinkers, legal
scholars, and courts. The barriers it would erect
against incumbency are constitutionally forbidden. The
Alaska Constitution sets the qualifications for
legislative office. Term limits are not included in
those qualifications. To the extent that incumbency
might be a political evil, the constitution provides a
method -- frequent elections -- for discouraging it.
If this method should prove to be inadequate, the only
way that term limits might be imposed would be a
constitutional amendment.
Constitutional doctrine as passed down to us
through the history of this country, as adopted by the
state constitution, and as it exists today, will not
allow the term limits proposed. The lieutenant
governor's decision to deny certification of the
initiative was correct. Therefore, plaintiffs' motion
for summary judgment must be denied and defendants'
motion granted.
It is so ordered.
DONE this 21st day of May, 1993, at
Anchorage, Alaska.
/s/ Brian Shortell
BRIAN SHORTELL
Superior Court Judge
_______________________________
1 The opinion has been edited in conformity with Supreme
Court procedural standards.
2 The Alaska Constitution cannot be amended by
initiative. State v. Lewis, 559 P.2d 630 (Alaska
1977).
3 Boucher v. Engstrom, 528 P.2d 456, 462
(Alaska 1974).
4 Id., at 462.
5 Citizens Coalition v. McAlpine, 810 P.2d 162,
168 (Alaska 1991).
6 Id.
7 Plaintiffs suggested at oral argument that
judicial review might be deferred until after a vote on
the proposed initiative. However, this is not a case
in which time pressures or difficult constitutional
questions presented cannot properly be decided prior to
the initiative's submission to the voters. See Whitson
v. Anchorage, 608 P.2d 759, 762 n.4 (Alaska 1980). In
fact, this case has been brought to the decisional
stage by both parties with the intention of obtaining
pre-election dispositive review. There is no valid
reason for delay, and there are good reasons for
defining the constitutional limits on this initiative
proposal if such limits should be imposed.
8 Consecutive terms of the governor are limited
to two full successive terms by article III, section 5,
and the chief justice of the supreme court cannot serve
any consecutive terms because that would be prohibited
by article IV, section 2(b) of the constitution.
9 See memorandum in support of state's cross-
motion for summary judgment at 11, 12. The people's
power to enact legislation by initiative is no greater
than that of the legislature. Alaska Constitution,
article XI, section 1; McAlpine v. University of
Alaska, 762 P.2d 81, 95 (Alaska 1988). Thus, any law
that would be invalid if enacted by the legislature
would also be invalid if enacted by initiative.
Citizens Coalition v. McAlpine, 810 P.2d at 168.
10 The political history is thoroughly described
in Powell v. McCormack, 395 U.S. 486 (1969).
11 Id. at 528.
12 Id. at 533.
13 Id. at 539 (citing the Federalist Papers 371
(Mentor Ed. 1961)).
14 State's memorandum at 11.
15 Later state cases continued this trend. See
Whitney v. Bolin, 330 P.2d 1003 (Ariz. 1958); Opinion
of the Justices, 245 A.2d 172 (Del. 1968); Maloney v.
Kirk, 212 So. 2d 609 (Fla. 1968); Pavlak v. Growe, 284
N.W.2d 174 (Minn. 1979); Labor's Education and
Political v. Danforth, 561 S.W.2d 339 (Mo. 1977). See
also Plugge v. McCuem, 841 S.W.2d 139, 143 (Ark. 1992)
(Dudley, J., dissenting).
16 "Something that qualifies or restricts . . .
an endowment or acquirement that fits a person (as far
as office) . . . a condition precedent that must be
complied with (as for the attainment of a privilege)
. . . ." Webster's Third New International Dictionary
(1961 ed.). This definition is as helpful as Woody
Allen's dictionary definition of a "lascivious
adulterer": "One who engages in lascivious adultery."
17 395 U.S. 486 (1969).
18 Id. at 550.
19 Id.
20 415 U.S. 724, 748 (1974).
21 Id. at n.16.
22 See cases cited p. 8, above.
23 Latz, The Constitutionality of State-Passed
Congressional Term Limits, 25 Akron Law Review 155, 177
(1991). Although this case may also involve issues
other than the "direct"qualifications clause approach,
the parties have not briefed or argued those issues and
I shall not address them in this decision.
24 See State v. Marshall, 633 P.2d 227 (Alaska
1981); Secretary of State v. McGucken, 222 A.2d 693
(Md. 1966).
25 See Saari v. Gleason, 148 N.W. 293 (Minn.
1914); State ex rel. LaFollette v. Kohler, 228 N.W. 895
(Wis. 1930).
26 See Storer v. Brown, 415 U.S. at 746 n.16.
27 See Joyner v. Mofford, 706 F.2d 1523 (9th
Cir. 1983).
28 See Signorelli v. Evans, 637 F.2d 853 (2nd
Cir. 1980) ("resign to run"regulatory scheme in New
York State protects the integrity of a branch of state
government by the same principle of incompatibility the
Constitution has endorsed for the national government).
29 Stack v. Adams, 315 F. Supp. 1295, 1298 (N.D.
Fla. 1970).
30 See Storer v. Brown, 415 U.S. at 736 n.7.
31 Benesch, 446 P.2d at 403.
32 633 P.2d at 232.
33 Oklahoma State Elections Board v. Coats, 610
P.2d 776, 780 (Okla. 1980). Contra Stack v. Adams, 315
F. Supp. 1295, 1298 (N.D. Fla. 1970).
34 Saari v. Gleason, 148 N.W. 293, 295 (Minn.
1914); State ex rel. Lafollette v. Kohler, 228 N.W. 895
(Wis. 1930). But see Maloney v. Kirk, 212 So. 2d 609
(Fla. 1968).
35 Buckingham v. State ex rel. Killoran, 35 A.2d
903 (Del. 1944); Pavlak v. Growe, 284 N.W.2d 174 (Minn.
1979); Labor's Int'l and Political v. Danforth, 561
S.W.2d 339 (Mo. 1977); State ex rel. Palagi v. Regan,
126 P.2d 818 (Mont. 1942).
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