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Cook v. Botelho (8/2/96), 921 P 2d 1126
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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, telephone (907) 264-0607, fax (907) 264-
0878.
THE SUPREME COURT OF THE STATE OF ALASKA
TIM O. COOK, )
) Supreme Court No. S-7253
Appellant, )
) Superior Court No.
v. ) 3AN-95-4778 CI
)
BRUCE M. BOTELHO, ATTORNEY GENERAL )
OF THE STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4379 - August 2, 1996]
___________________________________)
)
THE ALASKA STATE LEGISLATURE, )
)
Appellant, )
) Supreme Court No. S-7263
v. )
)
BRUCE M. BOTELHO, ATTORNEY GENERAL )
OF THE STATE OF ALASKA, )
)
Appellee. )
___________________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Peter A. Michalski, Judge.
Appearances: Wevley William Shea, Anchorage,
for Tim O. Cook. Pamela Finley, Legislative
Counsel, Legislative Affairs Agency, Juneau,
for Alaska State Legislature. David T. Jones,
Assistant Attorney General, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
EASTAUGH, Justice.I. INTRODUCTION
We are here required to construe the constitutional
allocation of the power to appoint and remove members of regulatory
commissions, and the constitutional and statutory provisions
governing appointments during a recess of the legislature. The
superior court entered summary judgment in favor of Attorney
General Bruce Botelho, holding that Tim O. Cook does not lawfully
hold the office of Alaska Public Utilities Commissioner. We
reverse.
II. FACTS AND PROCEEDINGS
In October 1994 Governor Walter Hickel named Cook to a
vacant position on the Alaska Public Utilities Commission (APUC).
The Alaska State Legislature was then in recess. By letter, the
governor's office informed Cook that he was appointed "effective
October 31, 1994, for a term ending October 31, 2000." Cook took
the oath of office on October 31, 1994, received a Certificate of
Commission, and began performing his duties as a member of the
APUC.
On December 5, 1994, Tony Knowles took office as Governor
of Alaska, succeeding Walter Hickel in that position. The
Nineteenth Legislature convened on January 16, 1995. On February
13, 1995, Governor Knowles informed Cook by letter that he would
not be presenting Cook's name to the legislature for confirmation,
and requested Cook's "immediate resignation"by February 27, 1995.
Governor Knowles simultaneously notified the legislature that he
understood it had referred all of former Governor Hickel's recess
appointments to various committees for confirmation hearings.
Governor Knowles further advised the legislature that he had not
presented to the legislature for confirmation the names of any of
those persons, and that he viewed the Senate's consideration of
those appointments "to be of no legal effect."
Cook did not resign. On February 15 the legislature in
joint session voted to confirm Cook's appointment, among other
appointments made by Governor Hickel before the legislative session
began. In early June, Governor Knowles's Chief of Staff asked Cook
to vacate his seat on the APUC, stating that
[b]ecause Governor Knowles withdrew your
interim appointment and did not present your
name to the legislature for confirmation, the
legislature could not validly confirm your
interim appointment as commissioner.
Therefore, your interim appointment terminated
no later than May 16, 1995, when the
legislature adjourned without having validly
confirmed that appointment.
Cook remained in office. (EN1)
Several days later the attorney general filed an action
against Cook for usurpation of office under AS 09.50.310(1), and
for a declaratory judgment that the legislature's attempt to
confirm Cook was invalid. Cook counter-claimed, asserting that he
was legally in office and that Governor Knowles and the attorney
general had committed tortious conduct in attempting to remove him.
The attorney general moved for summary judgment. The legislature
intervened as a defendant, and moved for a partial summary judgment
dismissing the attorney general's claims.
The superior court granted the attorney general's motion,
holding that under AS 39.05.080 "[a] recess appointment terminates
thirty days after the legislature convenes. . . . [An] appointee
could only hold office for a limited period of time before either
facing the confirmation process (if the governor decided to present
the appointee's name to the legislature) or ouster by law under AS
39.05.080." Therefore, the superior court determined that "Mr.
Cook's term ended when his name was not presented to the
legislature for confirmation within 30 days of the convening of the
legislature." The court also held that "the last act in the
appointment of an APUC commission member is presentment to the
legislature by the governor. Until the governor has presented an
appointee's name to the legislature, the governor has the right to
change his mind and select someone else."(Citations and footnotes
omitted.)
The court accordingly entered a final judgment in favor
of the attorney general under Alaska Rule of Civil Procedure 54(b).
Cook and the legislature appeal.
III. DISCUSSION
Under article III, section 26 of the Alaska Constitution,
members of commissions such as the APUC "shall be appointed by the
governor, subject to confirmation by a majority of the members of
the legislature in joint session." See Bradner v. Hammond, 553
P.2d 1, 3 (Alaska 1976) (Section 26 "vests the power of appointment
in the governor and the power to confirm in the legislature in
joint session."). Section 26 further gives the legislature the
power to restrict by law the removal of such members. Alaska
Const. art. III, sec. 26; see also AS 42.05.035 ("The governor may
remove a commissioner from office by and with the consent of a
majority of the legislature."). Article III, section 27 of the
Alaska Constitution governs recess appointments. "The governor may
make appointments to fill vacancies occurring during a recess of
the legislature, in offices requiring confirmation by the
legislature. The duration of such appointments shall be prescribed
by law." Alaska Const. art. III, sec. 27. (EN2)
This case presents three major issues regarding the
constitutional and statutory provisions governing appointments.
First, this court must determine at what point the governor may no
longer withdraw an appointee without complying with the statutes
governing removal. Second, we must decide whether the legislature
may confirm an appointee absent the incumbent governor's
presentment of the appointee's name under AS 39.05.080. The final
issue concerns the duration of appointments made while the
legislature is in recess; the attorney general argues that such
appointments automatically terminate thirty days after the
legislature reconvenes, while Cook and the legislature contend that
recess appointments are no different from appointments made while
the legislature is in session.
The resolution of these questions demands constitutional
and statutory interpretation. This court applies its independent
judgment to constitutional issues, adopting "a reasonable and
practical interpretation in accordance with common sense"based
upon "the plain meaning and purpose of the provision and the intent
of the framers." Arco Alaska, Inc. v. State, 824 P.2d 708, 710
(Alaska 1992) (citing Kochutin v. State, 739 P.2d 170, 171 (Alaska
1987)). We also interpret statutes according to our independent
judgment, giving "effect to the intent of the law-making body 'with
due regard for the meaning that the language in the provision
conveys to others.'" Marlow v. Municipality of Anchorage, 889 P.2d
599, 602 & n.1 (Alaska 1995) (quoting Foreman v. Anchorage Equal
Rights Comm'n, 779 P.2d 1199, 1201 (Alaska 1989)). (EN3)
A. Removal of Appointees
The governor's power to reconsider Cook's appointment
ended when the governor committed the last act required to complete
the executive function of appointment. The superior court held
that presentment of the appointee's name to the legislature is the
last act completing appointment. We hold that the appointment was
complete no later than when Cook assumed the powers of office.
The United States Supreme Court has stated:
The appointment being the sole act of the
President, must be completely evidenced, when
it is shown that he has done every thing to be
performed by him.
. . . .
Some point of time must be taken when the
power of the executive over an officer, not
removable at his will, must cease. That point
of time must be when the constitutional power
of appointment has been exercised. And this
power has been exercised when the last act,
required from the person possessing the power,
has been performed.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 157 (1803) (holding that
under federal law, the president may not withhold the commission of
an appointed and confirmed officer). See also Division of
Elections v. Johnstone, 669 P.2d 537, 540 (Alaska 1983), cert.
denied sub nom. Denardo v. Johnstone, 465 U.S. 1092 (1984)
(applying last act analysis to determine when appointment occurs).
Courts have uniformly held that an executive's power to
reconsider an appointment ends when the executive takes the last
act required to complete the appointment process. Marbury, 5 U.S.
at 162; In re Comm'n on Governorship of Cal., 603 P.2d 1357, 1365
(Cal. 1979); McChesney v. Sampson, 23 S.W.2d 584, 587 (Ky. 1930);
State v. Essling, 128 N.W.2d 307, 312-13 (Minn. 1964); Burke v.
Schmidt, 191 N.W.2d 281, 284 (S.D. 1971).
The rule established by cases considering the issue is
that the last act of the executive is the act which places the
appointee in office.
If appointment by the governor had had the
effect of placing [the appointee in office]
and authorizing him to perform its functions,
there could be no question but that the
proposition that the governor had exhausted
his power in making the appointment and could
not withdraw it would apply.
McBride v. Osborn, 127 P.2d 134, 136 (Ariz. 1942). See also In re
Comm'n on Governorship of Cal., 603 P.2d at 1365 (holding that
governor may withdraw appointee where appointment "does not
complete the appointive process or confer even an interim right to
assume office"); McChesney, 23 S.W.2d at 587 ("[U]nder our system
the appointee of the Governor takes the office, enters upon the
performance of its duties, and is charged with responsibility. He
holds then subject alone to the action of the Senate."); Essling,
128 N.W.2d at 313 (holding that last act of executive is act that
"vest[s the appointee] with the powers and duties of the office");
Burke, 191 N.W.2d at 284 (holding that gubernatorial power to
withdraw depends upon "whether the action of the executive is
complete and places the appointee in office without further
action").
An appointee to the APUC may perform the duties of office
once the governor designates the individual for office, and the
appointee takes the oath of office and receives a commission.
Alaska Statute 39.05.080(4) provides that "[p]ending confirmation
or rejection of appointment by the legislature, persons appointed
shall exercise the functions, and have the powers and be charged
with the duties prescribed by law for the appointive positions or
membership." Cook began to exercise the powers of a member of the
APUC when he took the oath of office and received his commission.
At that point the executive had no power to reconsider the
appointment. (EN4)
The attorney general argues that an appointment is not
complete until the governor presents the appointee's name to the
legislature under AS 39.05.080(1). (EN5) However, Alaska Statute
39.05.080 sets the procedural steps to be followed during the
legislative function of confirmation; it does not establish the
substantive elements of the executive act of appointment.
Presentment requires the governor to notify the legislature of his
appointments; AS 39.05.080(1) states that the governor "shall"
present the names of "persons appointed . . . who have not
previously been confirmed . . . ." Presentment thus constitutes a
procedure following appointment and facilitating legislative
confirmation. Presentment is not part of the appointment.
Having made the appointment, AS 39.05.080(1) obliges the
executive to apprise the legislature of that fact. See Alaska
Const. art. III, sec. 16 ("The governor shall be responsible for
the faithful execution of the laws."). The statute does not give
the governor the option of refusing to present the name of an
appointee. The governor's appointment was complete no later than
when Cook took office. (EN6) See Division of Elections v.
Johnstone, 669 P.2d at 539 (plain meaning of "appoint"is to
designate for office). This being so, Governor Knowles could not
remove Cook from office without complying with the statutes
governing removal from the APUC. AS 42.05.035 (removal of APUC
members requires consent of legislature). Compare McChesney, 23
S.W.2d at 587 ("In all jurisdictions where appointment to office is
regarded as an executive function, as here, an appointment to
office once made is incapable of revocation or cancellation by the
appointing executive in the absence of a statutory or
constitutional power of removal.") with Bradner, 553 P.2d at 6
("[W]e conclude that the appointment of executive officers is an
executive function . . . .").
B. Confirmation
The attorney general also argues that the legislature
lacked the power to confirm Cook, because Governor Knowles never
presented Cook's name to the legislature as required by AS
39.05.080. We hold that the legislature may confirm an appointee,
once the governor's appointment is complete, without awaiting
communication of the appointment from the executive. McChesney, 23
S.W.2d at 586; People v. Shawver, 222 P. 11, 25 (Wyo. 1924).
As discussed above, AS 39.05.080 does not define the
substantive elements of executive appointments, but rather
establishes the procedures by which appointees are confirmed. The
presentment process simply furnishes a means by which the
legislature may be apprised of the governor's actions. Section
.080(1) imposes a duty on the governor to present names; it does
not give the governor power to remove an appointee from office by
simply failing to carry out the presentment duty imposed by section
.080(1). While the statute provides that "the legislature shall,
before the end of the session in which the appointments are
presented, in joint session assembled, act on the appointments,"AS
39.05.080(2)(B), it does not prevent the legislature from
exercising its constitutionally granted confirmation authority just
because the governor declines to present a name.
The constitution delegates a part of the appointment
power to the legislature. Bradner, 553 P.2d at 7. This delegation
implies both a power, and a duty, to investigate the status of
appointed offices. As stated by the Kansas Supreme Court:
Under all the circumstances, the Senate cannot
shut its eyes to the facts as to whether the
respective offices are filled; whether they
are functioning under the law, or whether
there is a vacancy therein. The Governor's
communication sending the appointment to the
Senate raises the question: What is the
status to which the appointment refers? That
question the Senate is obliged to determine
for itself, and to make its own investigation
in order to discharge its duty. If the
investigation reveals the fact that the
Governor has already made an appointment of an
officer who has qualified, is in possession,
is discharging the duties, and is receiving
the emoluments of the office, the Senate must
determine the course it will pursue in the
light of that fact. The Senate, which has
official knowledge of all of the acts of
another state department, may not close its
eyes to an existing fact merely because the
executive has failed to transmit a
communication giving it the advice. The fact
that the Senate is called upon to consent to
or confirm appointments presupposes an
investigation upon which to base its judgment
as to whether or not it should confirm or
reject the named appointee. It is a matter of
common knowledge that the Senate of Kansas,
likewise the Senate of the United States, may,
and frequently does, investigate the
character, fitness, and ability of the
appointee submitted for its consideration.
The Senate must be permitted to investigate on
its own initiative, and without communication
from the Governor, the status of offices;
otherwise the Governor could fill and refill
them at his pleasure by simply failing to
advise the Senate. No other branch of the
government exercises the power of
investigation to the same degree as does the
legislative branch . . . . We conclude that
the Senate did not go beyond its powers in
making the investigation concerning the
offices held by the defendants, and, having
satisfied itself, that it could properly
exercise its judgment thereon. While it is
the usual and customary courtesy of the
executive to transmit such facts to the
Senate, we believe it the better view to hold
that the Senate may, on its own initiative, if
it so desires, ascertain the facts upon which
to base its deliberate and final judgment in
confirming or rejecting appointees of the
Governor.
Barrett v. Duff, 217 P. 918, 925-26 (Kan. 1923). See also Shawver,
222 P. at 25.
We find the reasoning of the Kansas court convincing.
The legislature holds broad powers of investigation necessary to
its law-making activities. The constitutional grant of the
confirmation power implies a coincident power and duty to
investigate the status of the appointed offices as well as the
qualifications of the individuals appointed to those offices.
Governor Hickel appointed Cook to the APUC, "for a term ending
October 31, 2000."(EN7) Once the governor completed Cook's
appointment by placing him in office, the legislature was entitled
to take notice of that fact and confirm or reject the appointee.
The presentment provision in AS 39.05.080(1) simply
provides one means by which the legislature has assured itself that
it will be informed of gubernatorial appointments. It does not
deprive the legislature of other means of investigation into the
status of those appointments. Nothing in the constitution or AS
39.05.080 suggests that the legislature is without power to inform
itself of gubernatorial appointments and confirm completed
appointments without communication from the executive.
We hold that once an appointment is completed, the
legislature may confirm the appointee without awaiting presentment
by the governor. Therefore the governor's failure to present
Cook's name to the legislature did not prevent the legislature from
validly confirming Cook.
C. Duration of Recess Appointments
The superior court held that Cook's appointment ended
thirty days after the legislature convened, based upon its
conclusion that AS 39.05.080(1) establishes this term for interim
appointments. We disagree. The Alaska Constitution and the
appointment statutes do not prevent the executive from appointing
an APUC member to a full term while the legislature is in recess,
nor do they prevent the legislature from confirming such an
appointee. Consequently, we hold that Cook was validly appointed
and confirmed to a full term as an APUC member.
1. The constitutional framework
Article III, section 27 of the Alaska Constitution allows
the governor to make recess appointments and states that "[t]he
duration of such appointments shall be prescribed by law." This
provision gives the legislature authority to set the duration of
interim appointments. The attorney general argues that "section 27
plainly contemplates interim appointments of limited duration."
This argument implies that the constitution draws a significant
substantive distinction between in-session appointees and recess
appointees. Based upon this distinction, the attorney general
contends that all recess appointments are subject to durational
limitations different from those for appointments made during a
session. The attorney general urges us to adopt this reasoning and
conclude that Governor Hickel could not nominate Cook to a full
term on the APUC while the legislature was in session, and
consequently that the legislature was without power to confirm Cook
to a full term on the APUC.
We do not read section 27 to create a fundamental
distinction between recess appointments and in-session
appointments, or to deprive the legislature of its confirmation
power with respect to recess appointees. On the contrary, the text
of section 27 refers to recess appointments as appointments
"requiring confirmation by the legislature." Alaska Const. art
III, sec. 27 (emphasis added). Confirmation of recess appointees
is thus explicitly envisioned by the plain language of the
constitution. Governor Hickel appointed Cook to a full term as an
APUC commissioner; the fact that the appointment occurred while the
legislature was in recess does not alter the nature of the
appointment.
The history of section 27 does not suggest that the
drafters intended some substantive distinction between recess
appointments and other appointments. The first draft of the recess
appointment provision clearly prevented the legislature from
confirming an interim appointee to a full term. (EN8) An amendment
was made specifically "to make it possible for the legislature to
confirm the person who has been given an interim appointment." 3
Proceedings of the Alaska Constitutional Convention (PACC) 2260-61
(January 13, 1956).
The entire provision was subsequently stricken because
the delegates felt it would have duplicated existing statutes. 3
PACC 2264-65 (January 13, 1956). Nonetheless, because some
delegates were concerned that in the absence of constitutional
protection a future legislature might, by amending the statute,
prevent the executive from filling vacancies arising during recess,
the predecessor to section 27 was adopted. (EN9) 3 PACC 2265-69
(January 13, 1956). The original version of this predecessor
stated: "The Governor may fill any vacancy occurring in any office
during a recess of the Legislature, as may be prescribed by law."
3 PACC 2268-69 (January 13, 1956). To avoid "the possibility that
the legislature could by law actually prohibit the governor from
even making a recess appointment,"the legislative power granted in
this version was limited to prescribing the duration of recess
appointments. 3 PACC 2284-85 (January 13, 1956).
The text and history of section 27 thus suggest that
recess appointments are a subset of, rather than distinct from, the
regular appointments described by article III, section 26 of the
Alaska Constitution. The constitution does not prevent the
legislature from confirming recess appointments. The duty imposed
on the legislature to prescribe the duration of recess appointments
was not intended to deprive the legislature of its confirmation
power over such appointments. Certainly that duty did not
implicitly give the governor power to prevent the legislature from
considering whether to confirm a recess appointment.
2. Appointment statutes
The statutes enacted by the legislature similarly treat
recess appointments no differently than other appointments. Alaska
Statute 39.05.080(1) states:
The appointing authority shall, within 30 days
of the convening of the legislature in regular
session, present to the legislature for
confirmation the names of the following
persons: (A) persons appointed to a position
or membership who have not previously been
confirmed by the legislature or either house
of it; (B) persons appointed subject to
confirmation to fill an existing position or
membership vacancy . . . .
Because the governor presents the names of appointees
within thirty days of the legislature's convening, the attorney
general reasons that recess appointments must terminate at that
point. The plain language of the statute, however, reveals no such
limitation. The governor "shall"present within thirty days the
names of the appointees. AS 39.05.080(1). The statute's mandatory
language provides the governor no discretion to reconsider an
appointment or refuse to present the name of an appointed
individual. The plain language of the statute simply does not
suggest that appointments made during recess must end thirty days
after the recess. Cf. In re Advisory Opinion to Governor, 247 So.
2d 428, 430-31 (Fla. 1971) (discussing statutory provision
explicitly limiting term of recess appointments). Rather, the
statute suggests that recess appointments may be confirmed in the
same manner as in-session appointments.
The statutes governing appointments to the APUC do not
distinguish between recess and in-session appointments. Alaska
Statute 42.05.030(a) sets the term of office for APUC members at
six years. "An appointee selected to fill a vacancy shall hold
office for the balance of the full term for which the appointee's
predecessor on the commission was appointed." AS 42.05.030(b).
Until the appointment has been made, the prior occupant is entitled
to continue to hold office. AS 42.05.030(a). An appointee is
entitled to hold office "[p]ending confirmation or rejection"by
the legislature. AS 39.05.080(4). The duration of a recess APUC
appointment, therefore, is exactly that of an appointment made
while the legislature is in session: until rejected by the
legislature or, if confirmed, for six years. See Bell v. Sampson,
23 S.W.2d 575, 580 (Ky. 1930) (allowing legislature to confirm
recess appointees despite opposition of governor, where
appointments governed by statute requiring legislature to take
action upon appointments at "its first session held thereafter.").
We hold that recess appointments are of the same duration
as all other appointments, and subject to legislative confirmation.
Cook's appointment, having been confirmed by the legislature, is
accordingly for the full six-year term of an APUC member.
III. CONCLUSION
Because Cook had already been placed in office, Governor
Knowles could not remove him without complying with the removal
statutes, and the legislature could validly confirm him.
Furthermore, AS 39.05.080 does not terminate recess appointments
when the legislature convenes. Cook was appointed to a full term
as an APUC member, and confirmed as such.
We consequently REVERSE the decision of the superior
court, and REMAND with directions that the legislature's partial
summary judgment motion be GRANTED, and for further proceedings in
both cases consistent with our discussion above.
ENDNOTES:
1. In late June 1995 Governor Knowles appointed G. Nanette
Thompson to the position claimed by Cook.
2. Article III, section 26 is the general appointment provision
for boards and commissions.
Boards and Commissions. When a board or
commission is at the head of a principal
department or a regulatory or quasi-judicial
agency, its members shall be appointed by the
governor, subject to confirmation by a
majority of the members of the legislature in
joint session, and may be removed as provided
by law. They shall be citizens of the United
States. The board or commission may appoint a
principal executive officer when authorized by
law, but the appointment shall be subject to
the approval of the governor.
Article III, section 27 of the Alaska Constitution states in full:
Recess Appointments. The governor may make
appointments to fill vacancies occurring
during a recess of the legislature, in offices
requiring confirmation by the legislature.
The duration of such appointments shall be
prescribed by law.
3. Cook states that "certain factual disputes precluded summary
judgment for the Attorney General." However, Cook makes no further
reference to such factual disputes in his brief. Such cursory
treatment is inadequate to raise an issue on appeal. See
Katmailand, Inc. v. Lake & Peninsula Borough, 904 P.2d 397, 402 n.7
(Alaska 1995).
4. The fact that the appointee's right to the office is
contingent upon confirmation by the legislature does not change
this result. Confirmation occurs after appointment.
[T]he governor's part of the appointive
process is to appoint a person to the board
. . . . The senate has the right and power to
confirm the appointment in order to fully
complete the appointive process but, under the
appointment procedures followed, this power to
confirm actually is more in the nature of a
power to veto the appointment after the fact.
Neither confirmation by the senate nor further
action by the governor was necessary to vest
respondent with the powers and duties of the
office. He actually performed those duties
for several months and was empowered to do so
until the senate directly, or indirectly,
rejected his appointment or he was removed for
cause.
State v. Essling, 128 N.W.2d 307, 313 (Minn. 1964). Cf. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 161 (1803) ("The appointment is the
sole act of the President; the acceptance is the sole act of the
officer, and is, in plain common sense, posterior to the
appointment. As he may resign, so may he refuse to accept: but
neither the one, nor the other, is capable of rendering the
appointment a non-entity.").
5. AS 39.05.080(1) states in full:
The appointing authority shall, within 30 days
of the convening of the legislature in regular
session, present to the legislature for
confirmation the names of the following
persons: (A) persons appointed to a position
or membership who have not previously been
confirmed by the legislature or either house
of it; (B) persons appointed subject to
confirmation to fill an existing position or
membership vacancy; (C) persons appointed
subject to confirmation to fill a position or
membership the term of which shall expire
before July 2, following the session of the
legislature. If an appointment is made after
the deadline but while the legislature is in
session, the appointing authority shall,
within five calendar days after the
appointment is made, present to the
legislature for confirmation the name of the
person appointed. The deadline may be
extended by the legislature by the approval of
a concurrent resolution.
6. We need not and do not decide whether the outcome would be
different if Governor Hickel had limited the term of Cook's
appointment when he designated Cook for office. Here Governor
Hickel clearly appointed Cook to a full term as APUC commissioner.
7. See note 5, supra.
8. That draft read: "[A recess appointment] shall expire at the
end of the next regular session of the Legislature, unless a
successor shall be sooner appointed and qualified." 6 Proceedings
of the Alaska Constitutional Convention (PACC) App. V at 121
(December 15, 1955).
9. Delegate Buckalew stated, "I doubt seriously if the governor
would have authority to make a recess appointment."3 PACC 2267
(January 13, 1956). In line with Delegate Buckalew's concerns,
Delegate Sundborg offered an amendment which eventually became
section 27. Id. at 2268. Delegate Victor Rivers objected to the
Sundborg amendment on grounds that were a defense of the earlier
stricken draft provision insofar as that draft prevented persons
nominated for an office and rejected for confirmation by the Senate
from serving as subsequent recess appointees. Delegate Rivers
stated, speaking of the Sundborg amendment:
That amendment does nothing more than give
[the governor] an implied power that is
already here. It doesn't take care of an
appointment he may make. Suppose the governor
makes an appointment of "Joe Doaks"to be a
secretary of some department, or head of some
department, the legislature does not confirm
him. The governor submits no new name; the
legislature goes out of session; the governor
then turns around and reappoints "Joe Doaks"
interim head until the next session of the
legislature meets. By our wording we have
taken care of that. By this wording it takes
care of nothing that is not already an implied
power. The legislature already has the power
to provide by law.
Id. at 2268-69. To this argument Delegate Sundborg replied:
My amendment would give the legislature the
power to take care of that by whatever
language or provision it desires. It does
give the governor the right to make an interim
appointment and then it says that the rules
governing such interim appointments shall be
laid down by the legislature.
Id. at 2269.
Subsequently, Sundborg clarified the initial amendment
with a new one which is in substance existing section 27. He
stated that the intent of the old amendment and the new amendment
were the same:
[A] little while ago I submitted another
amendment which I thought accomplished what
this says, but I was advised by some of the
technical staff it did not actually accomplish
what I had intended, in that it left the
possibility present that the legislature could
by law actually prohibit the governor from
even making a recess appointment under the
existing language. This new section says that
the governor may make a recess appointment but
that the duration of the appointment shall be
determined by the legislature.
Id. at 2284-85.
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