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Bess v. Ulmer (8/17/99) sp-5167
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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, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
HOWARD BESS, DARLENE BESS, JAY )
BRAUSE, and GENE DUGAN, ) Supreme Court Nos.
) S-8811/S-8812/S-8821
Appellants, )
) Superior Court No.
v. ) 3AN-98-07776 CI
)
FRAN ULMER, Lieutenant Governor ) O P I N I O N
of the State of Alaska, and )
STATE OF ALASKA, )
)
Appellees. ) [No. 5167 - August 17, 1999]
___________________________________)
THE ALASKA LEGISLATURE, acting by )
and through THE ALASKA LEGISLATIVE )
COUNCIL, REPRESENTATIVE PETE KELLY,)
and SENATOR LOREN LEMAN, )
) Superior Court No.
Appellants, ) 3AN-98-07972 CI
)
v. )
)
FRAN ULMER, in her official )
capacity as the Lieutenant Governor)
of the State of Alaska, )
)
Appellee. )
___________________________________)
ELIZABETH A. DODD, VICTOR "VIC" )
FISCHER, KATHERINE T. "KATIE" )
HURLEY, ERNEST E. LINE, GEORGE )
ROGERS, and JEAN ROGERS, )
)
Appellants, ) Superior Court No.
) 3AN-98-08114 CI
v. )
)
FRAN ULMER, Lieutenant Governor )
of the State of Alaska, SANDRA )
STOUT, Director of Division of )
Elections, and the STATE OF ALASKA,)
)
Appellees. )
___________________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sen K. Tan, Judge.
Appearances: Robert H. Wagstaff, Law Offices
of Robert H. Wagstaff, Anchorage, for Appellants Bess, Brause and
Dugan. James L. Baldwin, Assistant Attorney General, Bruce M.
Botelho, Attorney General, Juneau, for Appellee State of Alaska.
Kevin G. Clarkson, Brena, Bell & Clarkson, P.C., Anchorage, for
Appellee Alaska Legislature. Allison E. Mendel, Mendel &
Associates, Anchorage, for Appellants Dodd, Fischer, Hurley, Line
and Rogers. Jay Alan Sekulow, John P. Tuskey, American Center for
Law and Justice, Virginia Beach, Virginia; Kevin Theriot, American
Center for Law and Justice-Florida, Panama City, Florida; Robert B.
Flint, Hartig, Rhodes, Norman, Mahoney and Edwards, Anchorage, for
Amicus Curiae American Center for Law and Justice.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
MATTHEWS, Chief Justice.
COMPTON, Justice, dissenting in part.
I. INTRODUCTION
Citizen groups challenged three ballot propositions to
amend the Alaska Constitution because the propositions were
revisions not amendments; revisions can only be accomplished
through a constitutional convention. In an expedited Preliminary
Opinion and Order we held that Legislative Resolve No. 59 (relating
to prisoners' rights) is a revision, and struck it from the ballot.
[Fn. 1] Legislative Resolve No. 71 (limiting marriage) and
Legislative Resolve No. 74 [Fn. 2] (relating to apportionment) are
amendments, and therefore could appear on the ballot, though we
disallowed a portion of No. 71. This opinion reaffirms and
amplifies our Preliminary Opinion and Order. [Fn. 3]
II. FACTS AND PROCEEDINGS
The superior court granted summary judgment in favor of
the State defendants and the Legislative Council, entering final
judgment on September 8, 1998. This court granted expedited
consideration and heard oral argument on the case on September 18,
1998. On September 22, 1998, we issued a Preliminary Opinion and
Order, striking Legislative Resolve No. 59 (restricting the rights
of Alaska prisoners to those guaranteed by the federal
constitution), allowing in part and deleting in part Legislative
Resolve No. 71 (limiting marriage to the union of one man and one
woman), and allowing Legislative Resolve No. 74 (transferring the
power of reapportionment from the Executive branch to a
Redistricting Board).
III. STANDARD OF REVIEW
The parties agree that there are no material issues of
fact before the court. Because the present case involves a
question of law, we review the grant of summary judgment de novo
and "adopt the rule of law that is most persuasive in light of
precedent, reason, and policy."[Fn. 4]
IV. DISCUSSION
We based our expedited Preliminary Opinion and Order on
the fact that the Constitution of the State of Alaska can be
changed in only two ways -- amendment and revision -- and that a
separate procedure must be followed for each. To amend the
Constitution, the proposed change must be passed by a two-thirds
vote of each legislative house and then approved by a majority of
the voters. [Fn. 5] The Constitution may be revised by
constitutional convention. [Fn. 6] By holding that Legislative
Resolve No. 59 was a revision, and as such inappropriate as a
ballot measure, we adopted the view that the Constitution "can be
neither revised nor amended, except in the manner prescribed by
itself, and the power which it has conferred upon the legislature
in reference to proposed amendments, as well as to calling a
convention, must be strictly pursued."[Fn. 7]
The objective of this opinion is to elucidate the
distinction between amendatory changes and revisory changes, to
provide some guidance for future endeavors to change the
Constitution.
The Framers of the Alaska Constitution distinguished
between a revision and an amendment. Like scholars and other
framers in other states, they intended this distinction to be
substantive. We conclude that a revision is a change which alters
the substance and integrity of our Constitution in a manner
measured both qualitatively and quantitatively.
A. Revision and Amendment
The Framers of Alaska's Constitution explicitly contem-
plated the importance of the differentiation between amendments and
revisions and between their respective fields of application. [Fn.
8] In debating the text of article XIII, section 4, one
constitutional convention delegate stated "[t]here is a big
difference between revisions, which implies rewriting the constitu-
tion, and making amendments to specific articles or sections of the
constitution."[Fn. 9] Although no precise definition of the terms
was reached by the Framers (perhaps because such a task is not
possible), there was consensus that "amendment"contemplated a
simple change, whereas "revision"would encompass broader and more
comprehensive changes. [Fn. 10] The Framers also understood that
"[r]evision includes amendment but amendment does not include
revision."[Fn. 11] In recognition of these distinctions, the
Framers fashioned more stringent procedures for adopting revisions
than for adopting amendments.
As first proposed to the convention, article XIII allowed
revisions and amendments to be adopted by two successive
legislatures. [Fn. 12] Delegates offered changes during floor
debate distinguishing between revisions and amendments. Delegate
Cooper proposed a change allowing revisions to be adopted by a two-
thirds vote of two successive legislatures, a constitutional
convention, or a three-fourths affirmative vote of a single
legislature. [Fn. 13] Under this proposal, amendments were to be
adopted by a popular, three-fifths majority vote. [Fn. 14] As
ultimately passed, article XIII retained procedural distinctions
for adopting revisions and amendments, but specified constitutional
conventions as the only available avenue for revisions.
The Framers' decision to narrow the alternatives for
adopting revisions by making constitutional conventions the sole
permissible procedure demonstrates not only their awareness of the
distinction between revisions and amendments, but also their desire
to give the distinction substance, thereby ensuring that it would
be observed by future generations of Alaskans.
Scholars have also concluded that a distinction exists
between the two methods of constitutional change. Judge John A.
Jameson, in his Treatise on Constitutional Conventions, wrote that
the legislative process of amending a constitution should be
confined to "changes which are few, simple, independent, and of
comparatively small importance,"whereas a constitutional
convention is required for "a general revision of a Constitution,
or even for single propositions involving radical changes as to the
policy of which the popular mind has not been informed by prior
discussion."[Fn. 15]
Judge Jameson's examples of topics properly considered
"amendments"include changes designed to address "a doubt . . . as
to the construction to be put upon a particular clause[,] . . . or
a new distribution among the agencies of government of their
constitutional powers . . . to facilitate the transaction of
business, or to render public operations more safe or more
economical."[Fn. 16]
One purpose of requiring a constitutional convention for
revisions of the constitution is to promote stability.
Some political thinkers have interpreted
the written constitution in the American political system as a
stabilizing element which operates to retard change or requires a
more deliberate selection of what changes society deems desirable,
hence acceptable. As a document embodying the fundamental
political beliefs of the people and an accepted general arrangement
of governmental powers, there is indeed good reason to examine
searchingly any major changes proposed in the basic structure and
philosophy.[ [Fn. 17]]
Another purpose is to provide a specialized body of citizens whose
sole purpose is to consider the constitution as an organic whole,
and to make the appropriate and necessary changes.
[C]omplete revisions or even alterations of a
very thorough character should be made by conventions expressly
chosen for that purpose. Legislatures will usually have their time
taken up with other matters and be unable to devote sufficient time
to [the] subject, and the election of a body for the one purpose
concentrates public attention upon questions of a constitutional
character.[ [Fn. 18]]
According to Judge Jameson, constitutional changes of a magnitude
which can only be accomplished by a revision are not a task for the
legislature:
The legislature is a body chosen for temporary
purposes. It is a mirror of political passions and interests, and,
with the best intentions, cannot be expected to be free from bias,
even in questions of the highest moment. It is composed, moreover,
in general, of politicians rather than of statesmen. . . . But,
when a Convention is called, it is sometimes possible to secure the
return of such men. It is not necessarily because such a body is
recognized to be, as it is, the most important ever assembled in a
State, but because the measures it is expected to mature bear less
directly on the interests of parties or of individuals. Party
management, therefore, is not usually so much directed to the
seeking of control of a Convention as of a legislature. Besides,
the proper function of the latter body, that of municipal
legislation, being one of the highest vested by the sovereign in
any governmental agency, it cannot but be inexpedient, on a general
view, that there should be added to it that of organic legislation,
requiring different and higher gifts, and wider experience and
study, thus threatening to unsettle the balance of the
Constitution.[ [Fn. 19]]
The case law of other states which have similar
constitutional provisions that distinguish between amendments and
revisions is in accord with the scholarly writing. The courts have
held that constitutions which provide for both processes of
amendment and revision express a distinction of substance. [Fn. 20]
The Supreme Court of Florida described one aspect of the
distinction by stating that amendments "originate in the
legislature and the people have the choice only of acceptance or
rejection of the ones the legislature submits,"while in the case
of revision "[t]he people's delegates, elected for the purpose,
. . . weigh proposed provisions, debate their merits, [and] decide
what should become and what should not become the organic law."
[Fn. 21] The same court later held that the power to amend the
constitution (as distinct from the power to revise it) "includes
only the power to amend any section in such a manner that such
amendment if approved would be complete within itself, relate to
one subject and not substantially affect any other section or
article of the Constitution or require further amendments to the
Constitution to accomplish its purpose."[Fn. 22]
B. California's Resolution of the Issue
As the Framers of the Alaska Constitution did not
sufficiently define the difference between the two concepts for our
purposes, and because Alaska has not before had occasion to address
the deceptively simple question of the distinction between revisory
and amendatory changes, it is helpful to look to the law of
California, a state which has considered the issue carefully over
a period of nearly one hundred years. A line of California Supreme
Court cases, beginning with Livermore v. Waite, [Fn. 23] has
outlined the parameters of the procedures for constitutional change
in that state. The Livermore court described the importance of
adhering to strict procedures for revising and amending the
California Constitution.
Under the first of these methods the entire
sovereignty of the people is represented in the convention. The
character and extent of a constitution that may be framed by that
body is freed from any limitations other than those contained in
the constitution of the United States. If, upon its submission to
the people, it is adopted, it becomes the measure of authority for
all the departments of government, -- the organic law of the state,
-- to which every citizen must yield an acquiescent
obedience. . . . The legislature is not authorized to assume the
function of a constitutional convention, and propose for adoption
by the people a revision of the entire constitution under the form
of an amendment. . . . The very term "constitution"implies an
instrument of a permanent and abiding nature, and the provisions
contained therein for its revision indicated the will of the people
that the underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like
permanent and abiding nature. On the other hand, the significance
of the term "amendment"implies such an addition or change within
the lines of the original instrument as will effect an improvement,
or better carry out the purpose for which it was framed.[ [Fn. 24]]
The California Supreme Court relied heavily on Livermore
when it decided McFadden v. Jordan [Fn. 25] more than a half-
century later. McFadden concerned a proposed "amendment"to the
California Constitution. The amendment was designed to add a new
article, composed of two hundred and eight subsections, totalling
more than twenty-one thousand words. [Fn. 26] The court rejected
the proposed amendment because it was so "far reaching and
multifarious"as to amount to a revision. [Fn. 27]
The proposal is offered as a single amendment
but it obviously is multifarious. It does not give the people an
opportunity to express approval or disapproval severally as to each
major change suggested; rather does it, apparently, have the
purpose of aggregating for the measure the favorable votes from
electors of many suasions who, wanting strongly enough any one or
more propositions offered, might grasp at that which they want,
tacitly accepting the remainder. Minorities favoring each
proposition severally might, thus aggregated, adopt all. Such an
appeal might well be proper in voting on a revised constitution,
proposed under the safeguards provided for such a procedure, but it
goes beyond the legitimate scope of a single amendatory article.
There is in the measure itself no attempt to enumerate the various
and many articles and sections of our present Constitution which
would be affected, altered, replaced or repealed.[ [Fn. 28]]
Four cases on the same topic followed McFadden. [Fn. 29]
In three of those cases the California Supreme Court decided that
challenged proposals to amend the state constitution were not
impermissible revisions. [Fn. 30] Amador Valley v. State [Fn. 31]
concerned Proposition 13, which proposed a new article,
dramatically changing California's system of property taxation.
[Fn. 32] After discussing Livermore and McFadden, the court went
on to state that the method for distinguishing between amendments
and revisions "must be both quantitative and qualitative in
nature."[Fn. 33]
For example, an enactment which is so
extensive in its provisions as to change directly the "substantial
entirety"of the Constitution by the deletion or alteration of
numerous existing provisions may well constitute a revision
thereof. However, even a relatively simple enactment may
accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision also. In
illustration, . . . an enactment which purported to vest all
judicial power in the Legislature would amount to a revision
without regard either to the length or complexity of the measure or
the number of existing articles or sections affected by such
change.[ [Fn. 34]]
The court held that Proposition 13 was neither
quantitatively nor qualitatively revisory in nature, despite the
fact that it accomplished "substantial changes"in the tax system.
[Fn. 35]
In Brosnahan v. Brown, [Fn. 36] the California Supreme
Court applied this quantitative/qualitative analysis in holding
that the proposition known as the "Victims' Bill of Rights"was not
an illegitimate revision. [Fn. 37] The court concluded that the
"substantial changes"the proposal would accomplish failed to
amount to a sufficiently "far reaching change[] in the nature of
[the] basic governmental plan as to amount to a revision."[Fn. 38]
Finally, in Legislature of the State of California v. Eu,
[Fn. 39] the California Supreme Court addressed a proposed
amendment designed to limit "the powers of incumbency"by providing
for term limits and restrictions on legislators' retirement
benefits. [Fn. 40] Although the court recognized that "[t]erm and
budgetary limitations may affect and alter the particular
legislators and staff who participate in the legislative process,"
it held that "the basic and fundamental structure of the
Legislature as a representative branch of government is left
substantially unchanged"and therefore the proposal was not a
qualitative revision of the constitution. [Fn. 41]
Less than a year before Eu was decided, the California
Supreme Court had applied the quantitative/qualitative analysis to
a challenged initiative measure and reached a different result in
Raven v. Deukmejian. [Fn. 42] At issue there was a proposal
entitled the "Crime Victims Justice Reform Act,"designed to limit
the rights of criminal defendants to those guaranteed by the
federal constitution. [Fn. 43] To that end, the measure contained
a section that provided that certain criminal law rights "shall be
construed by the courts of [California] in a manner consistent with
the Constitution of the United States"and that the state
constitution "shall not be construed to afford greater rights"than
those afforded by the federal constitution. [Fn. 44] The Eu court
later noted that the proposal in Raven (in contrast to that in Eu)
was one that "would have fundamentally changed and subordinated the
constitutional role assumed by the judiciary in the governmental
process."[Fn. 45] In other words, the amendment would affect a
core function of one of the three branches of government, an
outcome expressly forbidden by Amador Valley. [Fn. 46]
The California Supreme Court based its holding in Raven
solely on the qualitative effect of the proposed amendment:
As a practical matter, ultimate protection of
criminal defendants from deprivation of their constitutional rights
would be left in the care of the United States Supreme Court.
Moreover, the nature and extent of state constitutional guarantees
would remain uncertain and undeveloped unless and until the high
court had spoken and clarified federal constitutional law.
In effect, [the proposed amendment] would
substantially alter the substance and integrity of the state
Constitution as a document of independent force and effect.[ [Fn.
47]]
The court specifically stated that the proposed amendment did not
have a quantitatively revisory effect, as it "delete[d] no existing
constitutional language and it affect[ed] only one constitutional
article,"[Fn. 48] but concluded that qualitatively it was "so far
reaching as to amount to a constitutional revision beyond the scope
of the initiative process."[Fn. 49]
C. The Alaska Rule and Its Application to the Three
Challenged Ballot Measures
The Constitution of Alaska, like that of California,
provides different procedures for different methods of constitu-
tional change. [Fn. 50] In deciding whether the proposal is an
amendment or revision, we must consider both the quantity and
quality of the proposed constitutional changes. We agree with the
reasoning of the California Supreme Court in Livermore, McFadden,
and Amador Valley that
an enactment which is so extensive in its
provisions as to change directly the "substantial entirety"of the
constitution by the deletion or alteration of numerous existing
provisions may well constitute a revision thereof [while] even a
relatively simple enactment may accomplish such far reaching
changes in the nature of our basic governmental plan as to amount
to a revision also.[ [Fn. 51]]
The process of amendment, on the other hand, is proper
for those changes which are "few, simple, independent, and of
comparatively small importance."[Fn. 52] The core determination
is always the same: whether the changes are so significant as to
create a need to consider the constitution as an organic whole.
With this in mind, we turn to an evaluation of each of the three
challenged ballot measures.
1. Legislative Resolve No. 59
This measure proposed to amend the Alaska Constitution by
adding a new section to article I, providing as follows:
Rights of Prisoners. Notwithstanding any
other provision of this constitution, the rights and protections,
and the extent of those rights and protections, afforded by this
constitution to prisoners convicted of crimes shall be limited to
those rights and protections, and the extent of those rights and
protections, afforded under the Constitution of the United States
to prisoners convicted of crimes.
This proposal bears an obvious similarity to the initiative measure
at issue in Raven. [Fn. 53] Like the Raven court, we find the
proposal to "amount to a constitutional revision beyond the scope
of the [ballot] process,"[Fn. 54] although our reasoning differs
somewhat. The Raven court held that the proposal constituted a
qualitatively revisory change to the constitution, but not a
quantitatively revisory change. [Fn. 55] We take a hybrid
approach. Not only would the proposal, for the reasons stated in
Raven, "substantially alter the substance and integrity of the
state Constitution as a document of independent force and effect,"
[Fn. 56] but as we held in the Preliminary Opinion and Order, it
also would potentially alter as many as eleven separate sections of
our Constitution. Both qualitatively and quantitatively,
therefore, Legislative Resolve No. 59 is an impermissible
constitutional revision.
2. Legislative Resolve No. 71
This measure proposed to amend the Alaska Constitution by
adding a new section to article I providing as follows:
Marriage. To be valid or recognized in
this State, a marriage may exist only between one man and one
woman. No provision of this constitution may be interpreted to
require the State to recognize or permit marriage between
individuals of the same sex.
Under our hybrid analysis, this proposed ballot measure
is sufficiently limited in both quantity and effect of change as to
be a proper subject for a constitutional amendment. [Fn. 57] Few
sections of the Constitution are directly affected, and nothing in
the proposal will "necessarily or inevitably alter the basic
governmental framework"of the Constitution. [Fn. 58]
3. Legislative Resolve No. 74
This ballot measure was designed to alter the
reapportionment scheme of article IV of the Alaska Constitution,
concerning House and Senate districts. The Framers of the Alaska
Constitution gave the power to reapportion the legislative
districts to the executive branch, to be used as a check against
legislative power. [Fn. 59] Legislative Resolve No. 74 removes
this power from the executive and assigns it to a neutral body.
[Fn. 60] Reassigning this power is unquestionably a significant
change in the present system of Alaskan government. It does not,
however, deprive the executive branch of a "foundational power,"
and as a result does not constitute a revision. [Fn. 61] As the
quantitative effect of the proposal is minimal, the qualitative
force of this narrow change would have to be greater to satisfy our
hybrid test. The essential function of the executive branch -- to
enforce the laws of the state -- remains unchanged, as does its
structure. No executive power is delegated to either of the other
two branches. In fact, the intent of the Framers in giving the
reapportionment power to the executive was primarily to prevent the
abuse or neglect of that power in the hands of the legislature,
rather than to safeguard a uniquely executive function. [Fn. 62]
Historically, the "method [of delegating reapportionment power to
the legislature itself] was a total failure"so the Framers
delegated it to the executive "in order to assure that the
reapportionment will be made and that there will not be neglect."
[Fn. 63]
This proposal, unlike Legislative Resolve No. 59, does
not "fundamentally change[] and subordinate[] the constitutional
role"of any branch in the governmental process. [Fn. 64]
Therefore, although the proposed change is substantial, it is not
so "far reaching and multifarious"as to comprise a revision. [Fn.
65]
V. CONCLUSION
We REAFFIRM the Preliminary Opinion and Order.
COMPTON, Justice, dissenting in part.
I have reexamined the Preliminary Opinion and Order, my
partial dissent from that order, and the court's present
amplification of its preliminary opinion. Nothing presented in the
amplification has persuaded me now to take a different path.
First, I think it unclear just what test the court is
adopting. The court cites and quotes with approval California
cases that have shaped that state's development of the
constitutional distinction between revisions of and amendments to
its constitution. California's analysis does not focus on only one
test, but rather on two: does the proposed enactment quantita-
tively or qualitatively revise the constitution? If a proposed
enactment changes the substantial entirety of the constitution
because of numerous deletions and alterations, quantitatively it
may constitute a revision. On the other hand, if a proposed
enactment accomplishes a far reaching change in the nature of
government, qualitatively it likewise may constitute a revision
even though the enactment is simple. California's analysis does
not entirely preclude some degree of subjectivity in its
application, but realistically it could not. The California
approach seems well suited to its purpose.
This court states that it "agree[s] with the reasoning of
the California Supreme Court."[Fn. 1] Yet in regard to
Legislative Resolve No. 59, it states that "[w]e take a hybrid
approach."[Fn. 2] It concludes that Legislative Resolve No. 59
fails both the quantitative and qualitative tests. [Fn. 3]
Applying California's analysis, the proposal is a revision. While
it may be correct to say that Legislative Resolve No. 59 fails both
tests, I do not understand why this makes the test "hybrid."
The court again refers to its "hybrid analysis"in its
discussion of Legislative Resolve No. 71. [Fn. 4] It concludes
that this proposal "is sufficiently limited in both quantity and
effect of change as to be a proper subject for constitutional
amendment."[Fn. 5] This proposal offends neither of California's
tests, and would not be a revision in that state. Again I fail to
understand what is hybrid about the analysis applied by this court.
The court uses the term "hybrid"again with respect to
Legislative Resolve No. 74. [Fn. 6] It concludes that although
reassignment of the power to reapportion the legislature is
"significant,"it does not constitute a revision since it does not
deprive the executive branch of a "foundational power."[Fn. 7]
The court reasons: "As the quantitative effect of the proposal is
minimal, the qualitative force of this narrow change would have to
be greater to satisfy our hybrid test."[Fn. 8] The court still
has not articulated just what its "hybrid test"is, although it
sounds suspiciously like a sliding comparative scale test of some
sort.
The California analysis, with which this court has stated
it agrees, does not test by comparing quantitative and qualitative
criteria; each stands on its own merits. A proposed enactment
could satisfy neither test, either test, or both tests. That does
not make the test a "hybrid,"nor does it suggest some sort of
sliding comparative scale. This court's failure to carefully
articulate the test it is adopting is unfortunate.
This court's analysis is not constrained by contrary
findings or analysis by the superior court. Although the superior
court was asked to adopt California's Raven v. Deukmejian [Fn. 9]
analysis, it declined to do so. It concluded that looking to "the
historical context of constitutional amendments in Alaska"was the
correct analytical approach. The superior court concluded that "a
lot of these amendments add[] to rights rather than detract[] from
them, . . . then on the flip side the same constitutional amendment
could detract from [them]." A revision would not be necessary; an
amendment would suffice. Thus the record and briefing are
virtually barren of any presentation of the quantitative or
qualitative impact of Legislative Resolve No. 74. Nonetheless,
this court declares the quantitative effect to be "minimal"and the
qualitative effect "narrow."[Fn. 10]
It is valuable to compare Legislative Resolve No. 74 with
Legislative Resolve No. 59 and Legislative Resolve No. 71.
Legislative Resolve No. 59 amends article I of the Alaska
Constitution by adding section 25, which, in sixty-five words or
less, limits the rights of prisoners. This court has identified
eleven constitutional provisions that will be actually or
potentially affected by Legislative Resolve No. 59. [Fn. 11] It
concludes that this proposed enactment is not a permissible
constitutional amendment, foundering on both quantitative and
qualitative grounds. [Fn. 12] Since I agree that the proposal
founders on quantitative grounds, I need not address the remainder
of the conclusion. Suffice it to say, however, that its
application appears relatively simple.
Legislative Resolve No. 71 amends article I of the Alaska
Constitution by adding section 26, which, in forty-five words or
less, defines marriage. This court concludes that this proposed
enactment is a permissible constitutional amendment, not a
revision, since it is limited "in both quantity and effect of
change."[Fn. 13] Again, I agree.
Legislative Resolve No. 74 is altogether another matter.
It explicitly amends article VI of the Alaska Constitution by
revising sections 1, 2, 3, 4, 6, 8, 9, 10, and 11, and by repealing
sections 5 and 7; article XI by revising section 3; article XIV by
repealing it; and article XV by adding section 29. It implicitly
amends article IV of the Alaska Constitution by adding to the
powers of the Chief Justice of the Alaska Supreme Court. As noted,
this is brushed aside by the court as quantitatively "minimal."
[Fn. 14] While some of the amendments are procedural in nature,
others alter the core of the reapportionment/redistricting process
as it has been known in Alaska since statehood.
This court cites carefully selected language from
Legislature of the State of California v. Eu, [Fn. 15] to support
its assertion that the executive branch must be deprived of a
"foundational power"before a proposed enactment constitutes a
revision rather than an amendment. [Fn. 16] That is not what Eu
says:
By contrast, Proposition 140 on its face does
not affect either the structure or the foundational powers of the
Legislature, which remains free to enact whatever laws it deems
appropriate. The challenged measure alters neither the content of
those laws nor the process by which they are adopted. No
legislative power is diminished or delegated to other persons or
agencies. The relationships between the three governmental
branches, and their respective powers, remain untouched.[ [Fn. 17]]
Citing Raven, Eu observes that "a qualitative revision
includes one that involves a change in the basic plan of California
government, i.e., a change in its fundamental structure or the
foundational powers of its branches."[Fn. 18] Later, Eu again
observes that "[o]ur prior decisions have made it clear that to
find such a revision, it must necessarily or inevitably appear from
the face of the challenged provision that the measure will
substantially alter the basic governmental framework set forth in
our Constitution."[Fn. 19]
Neither Eu nor any other California case requires that
the branch of government to be affected by a proposed enactment be
deprived of a foundational power before the proposal constitutes a
revision rather than an amendment. Rather, Eu's language is much
less demanding. Its qualifiers are "affect,""alter,""change,"
"diminish[],"and "delegate[]."[Fn. 20] In Eu, the California
Supreme Court concluded that "[t]he relationships between the three
governmental branches, and their respective powers, remain
untouched."[Fn. 21]
This court acknowledges that "[t]he Framers of the Alaska
Constitution gave the power to reapportion the legislative
districts to the executive branch, to be used as a check against
legislative power,"citing a statement in the Proceedings of the
Alaska Constitutional Convention that "[S]tudents and writers seem
generally in accord that reapportionment . . . has been neglected
where it has been left to legislators."[Fn. 22] The court
advances no reason why the executive branch should now be deprived
of this check on legislative power, so debated in the
Constitutional Convention, and so unique in American government.
Nor does the court take issue with the statement I made in my
dissent to the Preliminary Opinion and Order that
[t]he chief executive's constitutional powers,
including the power over reapportionment, were among the most
debated, if not the most debated, issues at Alaska's Constitutional
Convention. . . . [N]ot only will the "amendment"divest the chief
executive of much of the constitutional power that office has held
since statehood, and invest the legislature with a constitutional
power heretofore unknown to it, but also it will bring the
judiciary into the reapportionment process in a manner which is
potentially highly political.[ [Fn. 23]]
This court recognized the uniqueness of Alaska's
constitutional reapportionment scheme over thirty years ago in Wade
v. Nolan: [Fn. 24]
Before attempting to discuss [whether the
acts of the Governor and his advisory Reapportionment Board in
reapportioning the Senate were authorized by the Alaska
Constitution] it is well to explain the origin of a unique feature
of the reapportionment provisions of the Alaska Constitution.
Whereas, traditionally, reapportionment had been made the
responsibility of state legislatures, the Alaska Constitutional
Convention purposely avoided placing any authority or
responsibility for reapportionment in the legislature. The
Convention was aware of the notorious and frequent failure or
downright refusal of state legislatures to comply with their
constitutional or statutory duty to reapportion. The Alaska
Convention's reason for placing reapportionment responsibility in
the Governor was well stated by its Chairman of the Committee on
Suffrage, Elections and Apportionment, John S. Hellenthal . . . .
. . . .
A reading of the Convention minutes in
relation to the reapportionment provisions makes it abundantly
clear that it was the specific intent of the Convention to grant no
authority to and to place no responsibility in the legislature with
respect to reapportionment. In a clear and clean-cut departure
from tradition, all of the authority and responsibility for
reapportionment granted or assigned was placed in the Governor,
assisted by a Reapportionment Board, including the authority to
make minor changes in Senate Districts.[ [Fn. 25]]
The court quotes Hellenthal at length, including his
reference to other variations of a plan. [Fn. 26] Hellenthal
concludes with the statement that "the best thought seemed to
indicate that the people would be best helped if [reapportionment]
were an executive function. . . . But it is the inaction of the
legislature, as testified to by the universal history of the 48
states, that we're trying to overcome."[Fn. 27] There is
virtually no textual support for this court's assertion that some
Framers believed "assigning the power to an independent board would
be a rational, relatively uncontroversial alternative."[Fn. 28]
In my dissent from the court's Preliminary Opinion and
Order, I remarked that
[t]he proposed constitutional "revision"
regarding prisoners affects a narrow class of persons comparatively
few in number. Yet because it implicates numerous state
constitutional provisions, and divests prisoners of state
constitutional protections, we conclude that it is a constitutional
"revision"that cannot be brought before the voters as a
constitutional "amendment"initiated by legislative action.1 On
the other hand, we conclude that the proposed change regarding
reapportionment, which fundamentally redistributes among all three
branches of government constitutional power previously held by the
chief executive alone, impacts all voters within the state, and
restructures the manner by which the voters are grouped together to
elect their legislators, is a mere constitutional "amendment"
undeserving of the politically impartial deliberation inherent in
the constitutional convention process. The irony is remarkable.[[Fn. 29]]
_____________________________________________
1 In concluding that Legislative
Resolve No. 74 is an "amendment"and not a "revision,"the court
observes that "[w]hile the change is an important one, it is simple
to express and understand. It is complete within itself, relates
to only one subject, and does not substantially affect numerous
sections of the constitution." Except for the "does not
substantially affect"phrase, which relates to the numerous
constitutional provisions that will be affected, what could be more
easily expressed and understood than that the rights of prisoners
under the Alaska Constitution shall be limited to those afforded by
the Constitution of the United States?
Juxtaposing these two proposed enactments today produces
no less irony than it did eleven months ago when the Preliminary
Opinion and Order were entered. The landscape so carefully crafted
by the Alaska Constitutional Convention's Committee on Suffrage,
Elections and Apportionment has been fundamentally and dramatically
"affected,""altered,"and "changed." The executive branch's power
has been "diminished"by being "delegated"to a board of
significantly different composition than that which heretofore was
constituted. Legislative Resolve No. 74 does not leave the
relationships between the three respective branches of government,
and their respective powers, "untouched." The contrary is plainly
evident. Legislative Resolve No. 74 is just as plainly a
constitutional revision. The substance of Legislative Resolve No.
74 should have to undergo the deliberative scrutiny to which the
issue was subjected in anticipation of statehood. To proclaim that
this is a "narrow"enactment, as does this court, is to reduce
reapportionment to the trivial. Years of reapportionment
litigation, and hundreds of pages of Alaska Supreme Court orders
and opinions, demonstrate just how important the issue is, and how
wrong this court is to hold otherwise.
FOOTNOTES
Footnote 1:
Appellant Bess challenged Legislative Resolve No. 59 in briefs
to the superior court and to this court. The State and Legislative
defendants did not respond to the argument that the resolve,
considered individually, constituted a revision.
Footnote 2:
Appellant Bess challenged Legislative Resolve No. 74 in briefs
to the superior court and to this court. The State and Legislative
defendants again failed to respond to the challenge.
Footnote 3:
Our Preliminary Opinion and Order is attached as an appendix.
It has been edited.
Footnote 4:
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 5:
See Alaska Const. art. XIII, sec. 1.
Footnote 6:
See id. at sec. 4. Amendments may also be accomplished by
convention. See id.
Footnote 7:
McFadden v. Jordan, 196 P.2d 787, 789 (Cal. 1948) (quoting
Livermore v. Waite, 36 P. 424, 425 (Cal. 1894)).
Footnote 8:
Cf. Adams v. Gunter, 238 So. 2d 824, 831 (Fla. 1970) (quoting
McFadden, 196 P.2d at 796-98) (noting "differentiation . . .
between [the] two procedures and between their respective fields of
application.").
Footnote 9:
2 Proceedings of the Alaska Constitutional Convention (PACC)
1247 (January 5, 1956).
Footnote 10:
See id. at 1274-77.
Footnote 11:
Id. at 1275.
Footnote 12:
6 PACC App. V at 21-22 (December 9, 1955).
Footnote 13:
2 PACC at 1242.
Footnote 14:
Id.
Footnote 15:
Judge John A. Jameson, A Treatise on Constitutional
Conventions; Their History, Powers, and Modes of Proceedingsec.sec. 540,
574(c) (Chicago, Callaghan and Company, 4th ed. 1887).
Footnote 16:
Id. at sec. 540.
Footnote 17:
Public Administration Service, 3 Constitutional Studies:
Constitutional Amendment and Revision 1 (November 8, 1955).
Footnote 18:
Walter F. Dodd, The Revision and Amendment of State
Constitutions 261-62 (1910).
Footnote 19:
Jameson, Constitutional Conventions at sec. 539.
Footnote 20:
See, e.g., Jackman v. Bodine, 205 A.2d 713, 725-26 (N.J.
1964); Holmes v. Appling, 392 P.2d 636, 638-39 (Or. 1964).
Footnote 21:
Rivera-Cruz v. Gray, 104 So. 2d 501, 503-04 (Fla. 1958). See
also State v. Manley, 441 So. 2d 864, 877 (Ala. 1983) (Torbert,
C.J., concurring) ("The people of this State, through their
Constitution . . ., have decreed that they reserve, in revising or
replacing the Constitution, a role much more active than merely
passing upon a proposal someone else has written.").
Footnote 22:
Adams v. Gunter, 238 So. 2d 824, 831 (Fla. 1970).
Footnote 23:
36 P. 424 (Cal. 1894).
Footnote 24:
Id. at 426.
Footnote 25:
196 P.2d 787 (Cal. 1948).
Footnote 26:
Id. at 790.
Footnote 27:
Id. at 788.
Footnote 28:
Id. at 796-97.
Footnote 29:
These cases are: Legislature of the State of California v.
Eu, 816 P.2d 1309 (Cal. 1991); Raven v. Deukmejian, 801 P.2d 1077
(Cal. 1990); Brosnahan v. Brown, 651 P.2d 274 (Cal. 1982); Amador
Valley Joint Union High School Dist. v. State Board of
Equalization, 583 P.2d 1281 (Cal. 1978).
Footnote 30:
See Eu, 816 P.2d at 1318; Brosnahan, 651 P.2d at 288-89;
Amador Valley, 583 P.2d at 1284-89.
Footnote 31:
583 P.2d 1281 (Cal. 1978).
Footnote 32:
Id. at 1283.
Footnote 33:
Id. at 1286.
Footnote 34:
Id.
Footnote 35:
Id. at 1286-87, 1289.
Footnote 36:
651 P.2d 274 (Cal. 1982).
Footnote 37:
Id. at 276, 288-89.
Footnote 38:
Id. at 288-89 (quoting Amador Valley, 583 P.2d at 1286).
Footnote 39:
816 P.2d 1309 (Cal. 1991).
Footnote 40:
Id. at 1312.
Footnote 41:
Id. at 1318.
Footnote 42:
801 P.2d 1077 (Cal. 1990).
Footnote 43:
Id. at 1079, 1080-83.
Footnote 44:
Id. at 1086.
Footnote 45:
Eu, 816 P.2d at 1318.
Footnote 46:
583 P.2d at 1286 ("[A]n enactment which purported to vest all
judicial power in the Legislature would amount to a revision
without regard either to the length or complexity of the measure or
the number of existing articles or sections affected by such
change.").
Footnote 47:
Raven, 801 P.2d at 1087 (emphasis in original).
Footnote 48:
Id. at 1086-87 (emphasis omitted).
Footnote 49:
Id. at 1086.
Footnote 50:
See discussion at page 4, supra.
Footnote 51:
Amador Valley, 583 P.2d at 1286.
Footnote 52:
Jameson, Constitutional Conventions at sec. 540.
Footnote 53:
801 P.2d at 1086.
Footnote 54:
Id.
Footnote 55:
Id. at 1086-90.
Footnote 56:
Id. at 1087.
Footnote 57:
Our Preliminary Opinion and Order deleted the second sentence
of Legislative Resolve No. 71 on other grounds. Appellants
expressed concern that the language could be interpreted to permit
the prosecution of individuals involved in marriage-like
relationships without the benefit of state sanction, and that this
risk might discourage religiously sanctioned marriage ceremonies.
Appellees questioned the need for deletion, contending that the
language was mere surplusage, but conceded at oral argument that
this court has the power to order deletion. We explained our
decision to order deletion as follows:
We do not believe that language which is
surplusage should be part of the constitution. Of special concern
is the possibility that the sentence in question might be construed
at some future time in an unintended fashion which could seriously
interfere with important rights. As decades pass, the legislative
history of the resolve may fade from memory. Further, court
decisions lack the permanency of constitutional language and may be
overruled. The objective of the second sentence -- harmonization of
other provisions of the constitution with the meaning of the first
sentence -- will be achieved in any event, for a specific amendment
controls other more general provisions with which it might
conflict. [See] Johns v. Commercial Fisheries Entry Comm'n, 758
P.2d 1256, 1264 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184,
1190 (Alaska 1983).
Footnote 58:
Brosnahan, 651 P.2d at 289.
Footnote 59:
See 3 PACC 1839 (January 11, 1956)("[S]tudents and writers
seem generally in accord that reapportionment . . . has been
neglected where it has been left to legislators.").
Footnote 60:
The power to draw the boundaries of the House and Senate
districts thereby passes from the governor, with the advice of a
reapportionment board of his own appointment, to a five-member
Redistricting Board, two members of which are appointed by the
governor and one each by the House Speaker, the Senate President,
and the Chief Justice of the Supreme Court.
Footnote 61:
Eu, 816 P.2d at 1318.
Footnote 62:
Though the Framers assigned the reapportionment power to the
executive branch, there are statements in the Proceedings of the
Constitutional Convention that indicate that assigning the power to
an independent board would be a rational, relatively
uncontroversial alternative. See 3 PACC at 1859, 1863.
Footnote 63:
3 PACC 1858 (January 11, 1956).
Footnote 64:
Eu, 816 P.2d at 1318.
Footnote 65:
Cf. Brosnahan, 651 P.2d at 288-89; Amador Valley, 583 P.2d at
1284-89.
FOOTNOTES (Dissent)
Footnote 1:
Slip Op. at 16.
Footnote 2:
Slip Op. at 18.
Footnote 3:
Id.
Footnote 4:
Id.
Footnote 5:
Id.
Footnote 6:
Slip Op. at 20.
Footnote 7:
Id.
Footnote 8:
Id.
Footnote 9:
801 P.2d 1077 (Cal. 1990).
Footnote 10:
Slip Op. at 20.
Footnote 11:
Slip Op. Appendix at 5.
Footnote 12:
Slip Op. at 18.
Footnote 13:
Id.
Footnote 14:
Slip Op. at 20.
Footnote 15:
816 P.2d 1309 (Cal. 1991).
Footnote 16:
Slip Op. at 20-21.
Footnote 17:
Eu, 816 P.2d at 1318.
Footnote 18:
Id. (citing Raven, 801 P.2d 1077).
Footnote 19:
Id. at 1319 (citations omitted).
Footnote 20:
Id. at 1318-19 (emphasis added).
Footnote 21:
Id. at 1318 (emphasis added).
Footnote 22:
Slip Op. at 19 and note 59.
Footnote 23:
Slip Op. Appendix at 10-11.
Footnote 24:
414 P.2d 689 (Alaska 1966).
Footnote 25:
Id. at 694-95.
Footnote 26:
Id.
Footnote 27:
3 Proceedings of the Alaska Constitutional Convention (PACC)
1859 (January 11, 1956).
Footnote 28:
Slip Op. at 20, note 62.
Footnote 29:
Slip Op. Appendix at 11.
APPENDIX
IN THE SUPREME COURT OF THE STATE OF ALASKA
Howard Bess, et al., )
Elizabeth Dodd, et al., and )
The Alaska State Legislature, ) Supreme Court Nos. S-088ll,
) S-08812, S-08821
Appellants, )
)
v. )
) Preliminary Opinion and Order
Fran Ulmer and State of )
Alaska, )
) Date of Order: 9/22/98
Appellees. )
______________________________)
Trial Court Case # 3AN-98-07776 CI
3AN-98-07972 CI
3AN-98-08114 CI
Before: Matthews, Chief Justice, Compton, Eastaugh, Fabe,
and Bryner, Justices.
DISCUSSION
1. Challenged in this case are three ballot propositions to
amend the Alaska Constitution which by legislative resolve are to
be placed before the voters in the November 1998 general election.
The superior court granted summary judgment in favor of the State
defendants and the Legislative Council and entered final judgment
on September 8, 1998. Because of the immediate need to decide what
the general election ballot shall contain we granted expedited
consideration. For the reasons set forth below we conclude that
(1) Legislative Resolve No. 59 (relating to prisoners' rights) may
not appear on the ballot, (2) Legislative Resolve No. 71 (limiting
marriage) may appear on the ballot, but the second sentence of the
proposed amendment should be deleted, and (3) Legislative Resolve
No. 74 (relating to reapportionment) may appear on the ballot.
2. The Alaska Constitution recognizes two types of
constitutional change. The constitution may be amended or it may
be revised.
a. Amendment. There are two methods of amendment. The
method relevant here is by legislative proposition which is passed
by two-thirds of the members of each legislative house and adopted
by a majority of the voters. Alaska Const. art. XIII, sec. 1. A
constitutional convention may also propose amendments. These
become effective if they are ratified by the voters. Alaska Const.
art. XIII, sec. 4.
b. Revision. There is one method of revision. The
constitution may be revised only by a constitutional convention
ratified by the voters. Alaska Const. art. XIII, sec. 4.
3. All three ballot propositions are challenged on the
ground that they are inappropriate as amendments under article
XIII, section 1 of the Alaska Constitution. Appellants argue that
the changes the propositions seek to accomplish can only be
effected, if at all, by the constitutional process of revision.
4. Case law is evidently unanimous in support of the view
that there is a distinction of substance between the concepts of
amendment and revision and that some proposed constitutional
changes can only be accomplished by revision. McFadden v. Jordan,
196 P.2d 787 (Cal. 1948); Rivera-Cruz v. Gray, 104 So. 2d 501 (Fla.
1958). The proceedings of the Alaska Constitutional Convention
indicate that the framers of our constitution were in accord with
this view. 2 Proceedings of the Alaska Constitutional Convention
1247, 1251, 1275 (January 5, 1956).
5. The line between changes which are permissible as
amendments and those which must necessarily be revisions cannot be
drawn with precision. In general, changes which are "few and
simple and independent"can be considered amendments, whereas
"sweeping change"requires the revision process. See State v.
Manley, 441 So. 2d 864, 879 (Ala. 1983) (Torbert, C.J.,
concurring); Jackman v. Bodine 205 A.2d 713, 725 (N.J. 1964), both
quoting sections from Judge John A. Jameson, A Treatise on
Constitutional Conventions (4th ed. 1887). McFadden is instructive
on the distinction between amendment and revision. We quote it at
some length because it was decided by a distinguished court only a
few years before the Alaska Constitution was written. Quoting from
an earlier case, the McFadden court discussed revisions made by a
convention in which "the entire sovereignty of the people is
represented . . . ." McFadden, 196 P.2d at 789.
The character and extent of a constitution
that may be framed by that body is freed from any limitations other
than those contained in the constitution of the United
States. . . . The very term ["]constitution"implies an instrument
of a permanent and abiding nature, and the provisions contained
therein for its revision indicated the will of the people that the
underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like
permanent and abiding nature. On the other hand, the significance
of the term "amendment"implies such an addition or change within
the lines of the original instrument as will effect an improvement,
or better carry out the purpose for which it was framed.
Id. (quoting Livermore v. Waite, 36 P. 424, 425 (Cal. 1894)). The
court held that the measure in question was so "far reaching and
multifarious"that it was revisory rather than amendatory in
nature. Id. at 788. The court listed numerous sections of the
constitution which the measure in question would affect. Id. at
794-96. This review demonstrated
the wide and diverse range of subject matters
proposed to be voted upon, and the revisional effect which it would
necessarily have on our basic plan of government. The proposal is
offered as a single amendment but it obviously is multifarious. It
does not give the people an opportunity to express approval or
disapproval severally as to each major change suggested . . . .
Id. at 796-97. In Adams v. Gunter, 238 So. 2d 824 (Fla. 1970), the
court opined that amendment as distinct from revision authority
"includes only the power to amend any section in such a manner that
such amendment if approved would be complete within itself, relate
to one subject and not substantially affect any other section or
article of the Constitution or require further amendments to the
Constitution to accomplish its purpose." Id. at 831.
6. The above authorities are quoted merely to suggest
factors that should be considered in determining whether a proposed
constitutional change is amendatory or revisory. In making such a
determination, respect for the legislature and the electoral
process requires that courts should decline to order a measure
removed from the ballot except in clear cases. See Meiners v.
Bering Strait Sch. Dist., 687 P.2d 287, 296 (Alaska 1984).
7. Legislative Resolve No. 59. This measure proposes to
amend the Alaska Constitution by adding a new section to article I
providing as follows:
Rights of Prisoners. Notwithstanding any
other provision of this constitution, the rights and protections,
and the extent of those rights and protections, afforded by this
constitution to prisoners convicted of crimes shall be limited to
those rights and protections, and the extent of those rights and
protections, afforded under the Constitution of the United States
to prisoners convicted of crimes.
1998 Legislative Resolve No. 59 (HCS CSSJR 3). All provisions of
the Alaska Constitution granting prisoners' rights not granted
under the federal constitution are superceded or amended by this
measure. Numerous provisions of the Alaska Constitution are either
actually or potentially affected. Changed or potentially changed
would be such constitutional guarantees as the right of all persons
to equal rights, art. I, sec. 1; freedom of religion, art. I, sec.
4;
freedom of speech, art. I, sec. 5; the right to petition
government,
art. I, sec. 6; the right to due process of law, art. I, sec. 7;
protections from double jeopardy and self-incrimination, art. I,
sec.
9; the right to counsel, art. I, sec. 11; protection from excessive
bail, excessive fines and cruel and unusual punishment, art. I,
sec.
12; the rights which flow from the principle of reformation, art.
I, sec. 12; the privilege of habeas corpus, art. I, sec. 13;
protection
from unreasonable searches and seizures, art. I, sec. 14; and the
right to privacy, art. I, sec. 22.
8. Legislative Resolve No. 59 is similar in character to the
ballot measure involved in Raven v. Deukmejian, 801 P.2d 1077 (Cal.
1990). The measure in that case provided in part that the
California Constitution "shall not be construed by the courts to
afford greater rights to criminal defendants than those afforded by
the Constitution of the United States . . . ." Id. at 1086. The
California Supreme Court concluded that this measure "would be so
far reaching as to amount to a constitutional revision . . . ."
Id. We reach the same conclusion in this case. Legislative
Resolve No. 59 would eliminate the independent force and effect of
so many provisions of the Alaska Constitution with respect to the
rights of prisoners that it is beyond the limits of the amendatory
process of article XIII, section 1.
9. Legislative Resolve No. 71. This measure would amend
article I of the Alaska Constitution by adding a new section to
read:
Marriage. To be valid or recognized in
this State, a marriage may exist only between one man and one
woman. No provision of this constitution may be interpreted to
require the State to recognize or permit marriage between
individuals of the same sex.
1998 Legislative Resolve No. 71 (HCS CSSJR 42). The appellees
contend that the meaning of this measure is that only marriages
between one man and one woman may be given official status and
recognition. Appellants contend that it has broader implications.
They argue that the first sentence necessarily amends the Alaska
Constitution in three respects: changing the equal rights clause,
art. I, sec. 1; the civil rights clause, art. I, sec. 3; and the
privacy
section, art. I, sec. 22. They contend that the second sentence
divests the judiciary of the power to interpret the constitution.
Further, they argue that the second sentence "permits the criminal-
ization of homosexual relationships . . ."and may modify the free
exercise of religion clause of article I, section 4 "because some
religions . . . perform same sex marriages today."
10. In our view the first sentence of the resolve is not so
broad in scope that it is impermissible as an amendment. It
potentially affects the meaning of the equal rights clause
contained in article I, section 1. Article I, section 3 is not
affected, for it does not specify sexual preference as a suspect
classification. Further, it is unclear whether the right to
privacy is affected, for the first sentence is concerned with
recognition of marriage as an official relationship, not with
private relationships. Moreover, the content of the sentence is
simple to express and understand. It relates to only one subject
and does not substantially affect numerous other sections of the
constitution.
11. More problematical are two aspects of the second sentence
of the measure. The appellants argue that the second sentence may
be interpreted to permit the prosecution of individuals because
they are involved in marriage-like relationships which are not
officially sanctioned, and may tend to inhibit, because of this
risk, religiously sanctioned marriage ceremonies. The appellees
counter that the second sentence is superfluous. They argue that
it is intended to say no more than that other provisions of the
Alaska Constitution must be harmonized with the first sentence.
Appellees suggest that this court could make it clear that the
proposed amendment is not intended to interfere with or criminalize
private or religiously recognized same-sex partnerships by issuing
an interpretation to that effect in this case. At oral argument
the appellees acknowledged that this court has the power to order
the deletion of the second sentence, but questioned the need for
this action since the sentence is merely surplusage. We believe
that there is such a need. We do not believe that language which
is surplusage should be part of the constitution. Of special
concern is the possibility that the sentence in question might be
construed at some future time in an unintended fashion which could
seriously interfere with important rights. As decades pass, the
legislative history of the resolve may fade from memory. Further,
court decisions lack the permanency of constitutional language and
may be overruled. The objective of the second sentence --
harmonization of other provisions of the constitution with the
meaning of the first sentence -- will be achieved in any event, for
a specific amendment controls other more general provisions with
which it might conflict. Johns v. Commercial Fisheries Entry
Comm'n, 758 P.2d 1256, 1264 (Alaska 1988); State v. Ostrosky, 667
P.2d 1184, 1190 (Alaska 1983). Impelled by these considerations we
believe that deletion of the second sentence is appropriate.
12. Legislative Resolve No. 74. This measure would amend
article VI of the Alaska Constitution concerning the apportionment
of House and Senate districts. Currently reapportionment is a
function performed by the Governor. Under the proposed amendment
the function would be performed by a board consisting of five
members, two appointed by the Governor, one appointed by the
presiding officer of the Senate, one by the presiding officer of
the House of Representatives, and one by the Chief Justice of the
Supreme Court. 1998 Legislative Resolve No. 74 (SCS CSHJR 44). It
is our view that this resolve reflects an appropriate exercise of
the amendatory power. While the change is an important one, it is
simple to express and understand. It is complete within itself,
relates to only one subject, and does not substantially affect
numerous other sections of the constitution.
13. The appellants also argue that the three ballot
propositions should be considered in the aggregate to be beyond the
constitutional amendatory process. We reject this argument, for
the measures lack substantial relationship to each other and are
proposed for separate and independent approval. Cf. Rivera-Cruz v.
Gray, 104 So. 2d 501 (Fla. 1958) (discussing "daisy chain"
argument).
14. In addition to the point that the measures are beyond the
amendatory process, the parties raise two other process-related
issues which are appropriate for decision prior to the election.
These are whether the propositions violate a constitutional one-
subject requirement and whether the Lieutenant Governor's summary
is fair and impartial. The Legislative Council also objects to the
summary as not fair and impartial. We have examined these claims
and find them to be without merit. However, the final sentence of
the summary regarding marriage must be deleted in conformity with
our decision regarding that measure.
15. Appellants' remaining claims are inappropriate for a pre-
election challenge.
ORDER
1. Legislative Resolve No. 59 shall not be placed on the
ballot.
2. The second sentence of the amendment proposed by
Legislative Resolve No. 71 shall not be placed on the ballot. To
conform with this change the last sentence of the Lieutenant
Governor's summary shall be deleted.
3. Legislative Resolve No. 74 shall be placed on the ballot.
4. An opinion will follow. Entered at the direction of the
court.
COMPTON, Justice, dissenting, in part.
The court concludes that the words "amend"and "revise,"
as used in article XIII of the Alaska Constitution, indeed have a
different meaning. I agree. It also concludes that the proposed
changes to the constitution relating to prisoners and the
definition of marriage are, in whole or in part, "revisions"to the
constitution and hence cannot be placed on the ballot by
legislative action; only a constitutional convention can act to
place these issues before the voters. I also agree. However, the
court concludes that the proposed change relating to the manner by
which reapportionment is accomplished is merely an "amendment." By
any measure this seems unsupportable; it is particularly so in
light of the court's conclusions with respect to constitutional
"revisions"regarding prisoners and the definition of marriage.
Therefore, I dissent from the court's conclusion regarding this
issue.
The Alaska Constitution provides for a chief executive
with strong powers, one of which is the power to shape the
composition of the reapportionment board. Effectively, this is the
power to shape the composition of the legislature itself. Indeed,
Alaska's is probably the only state constitution that grants its
chief executive such broad power over reapportionment. The chief
executive's constitutional powers, including the power over
reapportionment, were among the most debated, if not the most
debated, issues at Alaska's Constitutional Convention. To now
permit this issue to be brought before the voters through
legislative action as a constitutional "amendment"ignores the
importance which the Constitutional Convention gave to this issue,
and the pervasive effect the transfer of so much constitutional
power from the chief executive to the legislature will have on the
manner by which voters are grouped together to elect legislators.
Moreover, not only will the "amendment"divest the chief executive
of much of the constitutional power that office has held since
statehood, and invest the legislature with a constitutional power
heretofore unknown to it, but also it will bring the judiciary into
the reapportionment process in a manner which is potentially highly
political. The fact that the very persons whose interests are the
most directly affected by this "amendment"are the persons who have
brought the issue to the voters by the least restrictive, least
impartial, and most politically sensitive process, should not be
ignored.
The proposed constitutional "revision"regarding
prisoners affects a narrow class of persons comparatively few in
number. Yet because it implicates numerous state constitutional
provisions, and divests prisoners of state constitutional
protections, we conclude that it is a constitutional "revision"
that cannot be brought before the voters as a constitutional
"amendment"initiated by legislative action. [Fn. 1] On the other
hand, we conclude that the proposed change regarding
reapportionment, which fundamentally redistributes among all three
branches of government constitutional power previously held by the
chief executive alone, impacts all voters within the state, and
restructures the manner by which the voters are grouped together to
elect their legislators, is a mere constitutional "amendment"
undeserving of the politically impartial deliberation inherent in
the constitutional convention process. The irony is remarkable.
FOOTNOTES (Dissent - Appendix)
Footnote 1:
In concluding that Legislative Resolve No. 74 is an
"amendment"and not a "revision,"the court observes that "[w]hile
the change is an important one, it is simple to express and
understand. It is complete within itself, relates to only one
subject, and does not substantially affect numerous sections of the
constitution." Except for the "does not substantially affect"
phrase, which relates to the numerous constitutional provisions
that will be affected, what could be more easily expressed and
understood than that the rights of prisoners under the Alaska
Constitution shall be limited to those afforded by the Constitution
of the United States?
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