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State v. Trust the People (05/27/2005) sp-5898
State v. Trust the People (05/27/2005) sp-5898
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, LOREN )
LEMAN, LIEUTENANT ) Supreme Court No. S-
11288
GOVERNOR, and GREGG D. )
RENKES, ALASKA ATTORNEY ) Superior Court No.
GENERAL, ) 3AN-
03-12217 CI
)
Appellants, )
) O P I N I O N
v. )
) [No. 5898 - May 27, 2005]
TRUST THE PEOPLE, THE )
INITIATIVE COMMITTEE )
SPONSORING 03SENV, consisting )
of ERIC CROFT, HARRY T. )
CRAWFORD, JR., and DAVID )
GUTTENBERG, )
)
Appellees. )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Joanne M. Grace, Assistant
Attorney General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellants. Peter J. Aschenbrenner,
Aschenbrenner Law Offices, Inc., Fairbanks,
and Jeffrey M. Feldman, Feldman & Orlansky,
Anchorage, for Appellees. Peter J. Maassen,
Ingaldson, Maassen & Fitzgerald, Anchorage,
for Amicus Curiae Alaska Public Interest
Research Group.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Because of the need for resolution of the issues raised
in this case before the election, we issued our Order on August
20, 2004, with an opinion to follow. This is that opinion.1
A citizens group obtained sufficient signatures to
place on the November 2004 ballot an initiative restricting the
governors power to temporarily appoint a United States senator.
This case concerned whether the initiative should go before the
voters.
The Alaska Constitution provides that if the
legislature enacts legislation that is substantially the same as
a proposed initiative, the initiative is void. Because the
legislature enacted legislation that addresses the same topic,
the lieutenant governor removed the initiative from the ballot.
This case first required us to determine whether the legislation
is substantially the same as the initiative so as to render it
void under the Alaska Constitution. We decided this question in
the negative. Because we concluded that the principal purpose of
the initiative is to completely remove from the governor all
power to make temporary appointments to the office of United
States senator, while the effect of the legislation is to
preserve in all cases the governors power to make temporary
appointments to that office, we held that the legislation is not
substantially the same as the initiative.
The Seventeenth Amendment to the United States
Constitution provides that the legislature of any state may
empower the governor to make a temporary appointment of a United
States senator when a vacancy occurs in that office. The state
argues that this power is reserved to the Alaska State
Legislature and may not be exercised by the people through the
initiative. The initiative sponsors respond that this dispute is
not subject to resolution before the election; they claim that it
will only be ripe for decision if the initiative passes. Thus,
the case required that we determine whether pre-election review
of the initiative is appropriate under our law. We decided this
question also in the negative. We concluded that pre-election
review may extend only to subject-matter restrictions that arise
from Alaska law and that specifically address the initiative
process or to proposals that are clearly unlawful under
controlling authority. Because the proposed initiative meets
neither of these tests, we held that it should go before the
voters and that the states Seventeenth Amendment challenge was
premature.
Accordingly, we directed the lieutenant governor to
place the initiative on the November ballot.
II. FACTS AND PROCEEDINGS
In Alaska the peoples right to enact legislation by
initiative is guaranteed by article XI of the Alaska
Constitution, which states: The people may propose and enact laws
by the initiative, and approve or reject acts of the legislature
by the referendum.2 Once an application for a proposed
initiative has been signed by one hundred qualified voters, it is
filed with the lieutenant governor, who must certify the
initiative if he finds it in the proper form.3
On September 4, 2003 an initiative committee named
Trust the People sought to exercise the power granted by article
XI. The committee submitted an initiative application for a
proposed bill entitled An Act Relating to Filling a Vacancy in
the Office of United States Senator (03-SENV, also referred to as
the initiative). The proposed initiative was intended to repeal
former AS 15.40.010, which gave the governor the power to fill a
vacancy in the office of United States senator by appointment.
Under the prior law, if thirty months or less remained in a
vacating senators term, the governors appointee would serve as
senator for the remainder of the term. When the initiative was
submitted, AS 15.40.010 provided:
When a vacancy occurs in the office of United
States senator, the governor, at least five
days after the date of the vacancy but within
30 days after the date of the vacancy, shall
(1) appoint a qualified person who, if the
predecessor in office was nominated by a
political party, has been, for the six months
before the date of the vacancy, and is, on
the date of appointment, a member of the same
political party as that which nominated the
predecessor in office to fill the vacancy
temporarily until the vacancy is filled
permanently by election; and
(2) by proclamation and subject to this
chapter, call a special primary election and
a special election to fill the vacancy for
the remainder of the term of the predecessor
in office if the predecessors term would
expire more than 30 calendar months after the
date of the vacancy.[4]
Under the proposed initiative, all vacancies in the office of
United States senator must be filled by the voters in a special
election and the governor would have no power of appointment.
Under the proposed initiative there could be no incumbency
advantage because no temporary appointment would be permitted.
The procedural aspects of the special election (timing, term
limits, primaries, etc.) would mirror the current method by which
vacancies in the office of United States representative are
filled by special election.5 We set out the proposed initiative
in its entirety in the margin.6
After the initiative was submitted to Lieutenant
Governor Loren Leman, it was referred to the Department of Law
for pre-certification review. When a month passed and the
initiative had not been certified, Trust the People filed a
complaint against Lieutenant Governor Leman and Attorney General
Gregg Renkes (Trust the People I). Trust the People alleged that
Lieutenant Governor Leman and Attorney General Renkes were
unlawfully delaying certification in violation of Alaska
statutory and constitutional law. Trust the People sought a
declaratory judgment that the lieutenant governor was required to
immediately certify the initiative and prepare petitions and
booklets for circulation. A hearing concerning the delay was
held on October 10, 2003 before Superior Court Judge Mark
Rindner. At the hearing the parties agreed that by October 27,
2003 the lieutenant governor would either certify the initiative
and provide Trust the People with petition booklets as required
by law or provide Trust the People with a written denial of
certification. A written order concerning the parties agreement
was entered on October 13, 2003.
On October 20, 2003 the Department of Law issued an
opinion stating that the initiative is not a proper exercise of
the law making power reserved to the people under Article XII,
Section 11 of the Alaska Constitution.7 The Department of Law
determined that, under the Seventeenth Amendment to the United
States Constitution, the people do not have the power to
determine by initiative the method by which vacancies in the
office of U.S. senator will be filled. The Seventeenth Amendment
states in full:
The Senate of the United States shall be
composed of two Senators from each State,
elected by the people thereof, for six years;
and each Senator shall have one vote. The
electors in each State shall have the
qualifications requisite for electors of the
most numerous branch of the State
legislatures.
When vacancies happen in the
representation of any state in the Senate,
the executive authority of such State shall
issue writs of election to fill such
vacancies: Provided, That the legislature of
any State may empower the executive thereof
to make temporary appointments until the
people fill the vacancies by election as the
legislature may direct.
This amendment shall not be so construed
as to affect the election or term of any
Senator chosen before it becomes valid as
part of the Constitution.
Concluding that the plain language of the Seventeenth Amendment
vests the power to determine how to fill U.S. Senate vacancies
exclusively in each states formal representative body, the
department recommended that the lieutenant governor not certify
the initiative because it proposed a law that may not be enacted
via the initiative process. Lieutenant Governor Leman denied
certification of the initiative on October 21, 2003.
On October 30, 2003 Judge Rindner conducted a hearing
regarding the denial of certification. Trust the People argued
that the lieutenant governors power to deny certification of
initiatives was limited to precise state constitutional . . .
guidelines (presumably those set out in article XI, section 7 of
the Alaska Constitution) and had therefore been improperly
exercised in this case. Trust the People also argued that any
question regarding the constitutionality of the initiative could
be addressed through review by the courts only if and when the
voters of Alaska passed the initiative. The state argued that
Lieutenant Governor Leman had the power to deny certification if
the initiative concerned a subject that was outside the peoples
initiative power, and that denial was proper in this case because
under federal constitutional law, the method of filling U.S.
Senate vacancies cannot be determined by initiative.
Relying on our decision in Kodiak Island Borough v.
Mahoney,8 Judge Rindner ruled that the constitutionality of the
proposed initiative should not be considered unless and until the
Alaska voters enact the initiative into law. Accordingly, Judge
Rindner held that Lieutenant Governor Leman erred by denying
certification and ordered him to certify the initiative and
provide petition books to Trust the People.9 Judge Rindner
emphasized that he was not reaching the merits of the states
Seventeenth Amendment argument. The state appealed but did not
seek a stay of the superior courts order. Trust the People
circulated the petition and obtained almost 50,000 signatures.
On October 30, 2003 Lieutenant Governor Leman certified the
petition for inclusion on the ballot for the November 2004
statewide general election.
Briefing for the appeal of the superior courts decision
was completed by early May. On June 5, 2004 House Bill (H.B.)
414, An Act relating to filling a vacancy in the office of United
States senator, and to the definition of political party; and
providing for an effective date10 was enacted into law without
Governor Murkowskis signature.11 House Bill 414 provides in
pertinent part:
Section 1. The uncodified law of the State
of Alaska is amended by adding a new section
to read:
LEGISLATIVE INTENT. It is the desire of this
legislature that the provisions of secs. 2-8
and 10 of this Act, which are substantially
similar to those proposed in an initiative
petition, not be repealed for at least two
years after the Acts effective date.
Section 2. AS 15.40.140 is amended to read:
Sec. 15.40.140 Condition and time of calling
of special election. When a vacancy occurs
in the office of United States senator or
United States representative, the governor
shall, by proclamation, call a special
election to be held on a date not less than
60, nor more than 90, days after the date the
vacancy occurs. However, if the vacancy
occurs on a date that is less than 60 days
before or is on or after the date of the
primary election in the general election year
during which a candidate to fill the office
is regularly elected, the governor may not
call a special election.
Section 3. AS 15.40 is amended by adding a
new section to read:
Sec. 15.40.145. Temporary Appointment of
United States Senator. When a vacancy occurs
in the office of United States senator, the
governor may, at least five days after the
date of the vacancy but within 30 days after
the date of the vacancy, appoint a qualified
individual to fill the vacancy temporarily
until the results of the special election
called to fill the vacancy are certified.
If a special election is not called for the
reasons set out in AS 15.40.140, the
individual shall fill the vacancy temporarily
until the results of the next general
election are certified.
Following passage of H.B. 414, this court on June 9 asked the
parties to address whether the case was moot, or to file a motion
to dismiss. On June 16 Lieutenant Governor Leman removed the
initiative from the ballot. The lieutenant governor, concurring
with an opinion from Attorney General Renkes, determined that the
proposed initiative was void because it was substantially similar
to H.B. 414. The state then sought to dismiss its appeal to this
court, arguing that passage of H.B. 414 had rendered the appeal
moot.
Trust the People opposed dismissal, claiming that the
proposed initiative and H.B. 414 were not substantially the same.
Trust the People filed a new action in the superior court,
seeking a declaratory judgment that the proposed initiative must
be placed on the ballot for the statewide general election in
November 2004 and requesting injunctive relief to prohibit the
state from interfering with a popular vote on the initiative
(Trust the People II).12 Trust the People argued that Lieutenant
Governor Lemans removal of the initiative from the ballot
violated state statutory and constitutional law. The state
sought to stay the proceedings in Trust the People II pending our
resolution of its appeal in Trust the People I. Superior Court
Judge Morgan Christen denied the states motion and ordered
expedited consideration of the case. The state then filed a
petition for review, seeking to reverse the superior courts
denial of a stay.
On July 8 we issued an order granting the states
petition for a stay in Trust the People II. We informed both
parties that we would consider the issue of mootness on an
expedited basis when we considered the merits of Trust the People
I. Oral argument was held July 21, 2004. On August 20, 2004 we
issued the order set out in footnote 1.
In addition to the briefs filed by the parties to this
case, the Alaska Public Interest Research Group (AKPIRG) has
filed a brief as amicus curiae.
III. STANDARD OF REVIEW
This appeal raises questions of both state and federal
constitutional law, which we review using our independent
judgment.13 We liberally construe state constitutional provisions
that apply to the initiative process, particularly provisions
concerning subject matter limitations.14 Liberal construction of
federal constitutional provisions, however, is not appropriate.15
IV. DISCUSSION
Resolution of this case requires consideration of two
issues: (1) Is the initiative void under article XI, section 4 of
the Alaska Constitution, which states that an initiative is void
if the legislature passes substantially the same measure? (2)
Should the states Seventeenth Amendment challenge to the proposed
initiative be resolved before the initiative is put on the
ballot?
A. Is the Proposed Initiative Void Under Article XI,
Section 4 of the Alaska Constitution Because It Is
Substantially the Same as H.B. 414?
Article XI, section 4 of the Alaska Constitution
provides:
An initiative petition may be filed at any
time. The lieutenant governor shall prepare a
ballot title and proposition summarizing the
proposed law, and shall place them on the
ballot for the first statewide election held
more than one hundred twenty days after
adjournment of the legislative session
following the filing. If, before the
election, substantially the same measure has
been enacted, the petition is void.[16]
(Emphasis added.)
The proposed initiative states in relevant part that:
When a vacancy occurs in the office of United
States senator or United States
representative, the governor shall, by
proclamation, call a special election to be
held on a date not less than 60, nor more
than 90, days after the date the vacancy
occurs. However, if the vacancy occurs on a
date that is less than 60 days before or is
on or after the date of the primary election
in the general election year during which a
candidate to fill the office is regularly
elected, the governor may not call a special
election.
The proposed initiative would repeal the statutory provisions in
AS 15.40.010 empowering the governor to make a temporary
appointment to fill a senate vacancy. According to the impartial
summary of the initiative prepared for the petition booklets by
the lieutenant governor, the initiative would repeal state laws
by which the governor makes a temporary appointment of a Senator
who serves until an election can be held.
Following the submission of the initiative to the
lieutenant governor for placement on the ballot, the Alaska
legislature passed H.B. 414. In contrast to the proposed
initiative, H.B. 414 retains the governors temporary appointment
power in every case in which a senate vacancy might arise. House
Bill 414 states in relevant part:
When a vacancy occurs in the office of United
States senator, the governor may, at least
five days after the date of the vacancy but
within 30 days after the date of the vacancy,
appoint a qualified individual to fill the
vacancy temporarily until the results of the
special election called to fill the vacancy
are certified. If a special election is not
called for the reasons set out in AS
15.40.140, the individual shall fill the
vacancy temporarily until the results of the
next general election are certified.
Notwithstanding this difference, the lieutenant
governor determined that the initiative and H.B. 414 are
substantially the same. Accordingly, he deemed the initiative
void and removed it from the ballot. The parties sharply dispute
whether the initiative and the bill are in fact substantially the
same.
The definition of substantially the same is not
apparent from the text of the Alaska Constitution. And in Warren
v. Boucher,17 we noted that there is nothing in the legislative
history of the article, or in the vigorous floor debates thereon,
which points to an agreed upon meaning or a consciously adopted
definition of what this critical language should mean or that
offers any helpful discussion of what was the intended scope of
the words.18 We also noted that the words substantial or
substantially are relative, inexact terms, whose meaning is quite
elusive.19 We therefore examined the question against the total
structure of Alaskas constitutional system of direct legislation.20
We noted that the original proposal of the
Constitutional Convention Committee called for [l]aws proposed by
initiative [to] be submitted to the voters . . . unless the
legislature enacts the measure initiated . . . .21 The insertion
of substantially the same measure in place of the measure
demonstrated that the framers wished to allow some flexibility to
the legislature.22 At the same time, we noted the framers
conviction that popular enactment of legislation should not be
frustrated by legislative veto.23 We ultimately decided that a
legislative act is substantially the same as the initiative it
seeks to supersede if in the main the legislative act achieves
the same general purpose as the initiative [and] accomplishes
that purpose by means or systems which are fairly comparable.24
We also noted that [t]he broader the reach of the subject matter,
the more latitude must be allowed the legislature to vary from
the particular features of the initiative.25 Thus, Warren
developed a three-part test to determine whether a proposed
initiative and legislation are substantially the same: A court
must first determine the scope of the subject matter, and afford
the legislature greater or lesser latitude depending on whether
the subject matter is broad or narrow; next, it must consider
whether the general purpose of the legislation is the same as the
general purpose of the initiative; and finally it must consider
whether the means by which that purpose is effectuated are the
same in both the legislation and the initiative.
Turning to the first part of the test, we note that the
subject matter of the legislation and the initiative before us
filling senate vacancies is narrow. It is far narrower than the
subject matter of campaign finance reform that we considered in
Warren. The legislation in Warren was broad and complicated,
touching upon a great range of topics, including campaign
spending limits, reporting of contributions and expenses,
restrictions on anonymous contributions, penalties for non-
compliance, the creation of an elections oversight committee to
monitor elections, and several other topics.26 In the present
case, the legislation is simple and straightforward, essentially
dealing with only one substantive topic: filling of a U.S. Senate
vacancy. We agree with Trust the Peoples assessment that [t]he
simpler and more focused a law is, the fewer details that can be
adjusted without effecting a fundamental change in the measures
purpose and effect. As such, we begin our analysis with the view
that the legislature should be accorded less latitude in its
attempts to vary from the particular features of the initiative.27
Turning to the next part of the test, we consider the
general purpose of both the initiative and H.B. 414. The
controversy before us differs fundamentally from the issue we
addressed in Warren. In that case, both the initiative and the
proposed legislation imposed greater controls over election
contributions and expenditures; and despite some differences, it
was clear that they both addressed the subject matter in similar
ways.28 (Indeed, the dispute in Warren turned almost exclusively
on the third part of the test, the means by which the competing
versions of the law sought to vindicate their clearly common
purpose of campaign finance reform.) We stated that the
legislatures changes to the initiative did not vitiate[] the aims
of the initiative, but ma[de] those aims more feasible of
achievement.29 The legislature had made numerous changes to the
initiative that implicated the scope of the law, its enforcement
mechanisms, and other structural issues concerning the regulation
of campaign finance reform. But because these changes were seen
as promoting the shared goals of both the bill and the
initiative, we were willing to accept the legislatures bill as
substantially the same as its initiative counterpart, even though
there were in fact differences in the texts.30 But we cannot find
that the competing versions of the legislation before us in this
case share a common purpose. Indeed, as we explain more fully
below, we believe the initiative and H.B. 414 have opposite
objectives.
In order to determine the respective purposes of H.B.
414 and the initiative, we look to their texts to determine
intent.31 This, in turn, requires us to review the circumstances
surrounding the origins of the initiative.
As amended in 1998, AS 15.40.010 provided in relevant
part:
When a vacancy occurs in the office of United
States senator, the governor, within 30 days
after the date of the vacancy, shall (1)
appoint a qualified person . . . to fill the
vacancy temporarily until the vacancy is
filled permanently by election; and
(2) . . . call a special primary election and
a special election to fill the vacancy for
the remainder of the term of the predecessor
in office if the predecessors term would
expire more than 30 calendar months after the
date of the vacancy.[32]
In 2002 the legislature amended the statute to restrict the
governor from filling a vacancy until at least five days had
passed from the date of the vacancy.33 It was against this
background that Trust the People formed for the purpose of
changing the law by initiative. What was the intent of that
initiative?
We have previously held that in determining the meaning
that voters might attach to a ballot initiative, we will look to
published arguments made in connection with the initiative.34 At
the time of our August 20, 2004 order,35 there was very little
published material available because the voters handbook has not
yet been published. However, the lieutenant governors neutral
statement of the initiatives purpose, prepared pursuant to state
law36 for the petition booklets, was available for our review. The
lieutenant governor, in his neutral statement of the purpose of
the proposed initiative, wrote that the initiative would repeal
state laws by which the governor makes a temporary appointment of
a Senator who serves until an election can be held. Trust the
People insists that H.B. 414 does not accomplish this purpose,
but instead achieves precisely the opposite result.
The critical difference between the proposed initiative
and the bill is that while the proposed initiative precludes
gubernatorial appointment of a United States senator in each and
every case of vacancy, H.B. 414 permits the governor to make a
temporary appointment pending an election to fill the vacancy in
each and every case. This means that, while the proposed
initiative provides that in every instance Alaskas United States
Senate seats will be filled only by Alaskan voters, H.B. 414
would allow an unelected executive appointee to fill the seat for
an interim period that could last as long as five months.37
The state argues that the initiative and the bill are
substantially the same because they accomplish the same general
goal. That is, under both the act and the initiative, a special
election largely replaces the appointment process, unless the
relevant general election will occur soon after the vacancy. But
the states argument does not take into consideration the two
critical differences noted above between the texts of H.B. 414
and the proposed initiative: (1) H.B. 414 retains the executive
appointment power in every case while the proposed initiative
repeals that power entirely, which means that (2) H.B. 414 allows
appointees to fill U.S. Senate seats while the initiative seeks
to ensure that an unelected appointee will never represent Alaska
in the U.S. Senate. We conclude that these differences are so
important that it cannot be said that the proposed initiative and
H.B. 414 are substantially the same.
The state advances another argument to support its
conclusion that H.B. 414 is substantially the same as the
initiative. It notes that, pursuant to article XI, section 6 of
the Alaska Constitution, the legislature may amend an initiatives
terms at any time.38 The state asserts that had the legislature
not passed H.B. 414 to replace the initiative, it could just as
easily have made the same changes to the law by amending the
initiative once it was enacted. In Warren, we noted that the
legislatures amendatory power is broad and, in dicta, we
suggested that the legislatures power to supplant an initiative
by enacting new legislation might be identical to its power to
amend.39 But the power to avoid an initiative by enacting
legislation should not be equated with the power to amend an
initiative enacted by the voters. While the dicta in Warren v.
Boucher might be read to equate the two powers, they are not
equal. This is because the Alaska Constitution contains no
explicit limitation on the legislatures power to amend an
initiative enacted by the voters,40 but it does contain such a
limitation on the legislatures power to avoid a proposed
initiative: Legislation designed to avoid a vote on a proposed
initiative must be substantially the same as the initiative.41
Finally debate surrounding the adoption of article XI, section 4
reflects the framers concern that the legislature be given only
the power to amend and not the power to destroy.42 Thus, even
amendments to popularly-initiated legislation must still
effectuate[] the intent of the electorate,43 and an amendment that
so vitiates an act passed by initiative as to constitute its
repeal is not acceptable.44
The essential inquiry, then, is whether any difference
between H.B. 414 and the initiative so vitiates the initiatives
uncontradicted general purpose as to render H.B. 414 not
substantially the same. Trust the People asserts that, by
continu[ing] the governors appointment power and merely
expand[ing] the period during which a special election is
required, H.B. 414 preserves and codifies both the governors
appointment power and the incumbency advantage given to his
appointees when they later stand for election. According to
Trust the People, the initiative and the bill thus materially
differ. The state does not deny that this difference exists, but
seeks to downplay or justify its effects, insisting that [t]he
act and the initiative do accomplish the same general goal, and
that the short-term nature of the governors appointment power
under H.B. 414 is not significant in light of the more general
goals of the initiative and the act.
The state also argues that the legislatures
modifications to the proposed initiative were necessary, because
the initiative, as drafted, is ill-conceived legislation that
could seriously cripple or frustrate the sound workings of
government. According to the state, even a temporary vacancy in
one of Alaskas United States Senate seats (which, under the
initiatives framework could last as long as five months) could
damage Alaskas interests in the national government and make a
difference in the passage of legislation important to Alaska.
The state further argues that [f]illing senate vacancies quickly
also could be a matter of national importance, because a
terrorist attack on the Capitol could wipe out the United States
Senate, and [t]he ability of one branch of the federal government
to function might depend on the states ability to fill vacant
seats quickly. While the state raises serious policy arguments
in favor of H.B. 414, they relate to the wisdom of the
legislation and thus are more properly directed to the voters
considering the proposed initiative and not to the question
whether the proposed initiative and H.B. 414 are substantially
the same. As has been noted, the relevant judicial inquiry is
not whether the provisions are wise, but whether the legislative
act is substantially the same as the initiative.45
The state also contends that an appointee running for a
vacant seat in a general or special election may not necessarily
derive any benefits from his or her status as an incumbent,
thereby minimizing the differences between H.B. 414 and the
proposed initiative. The state asserts that [a] temporary
appointee who is thousands of miles from Alaska and is trying to
learn how to be a senator right before the election might be at a
disadvantage as against a candidate present in Alaska, garnering
support and raising money. Indeed, the state says, someone
wishing to permanently fill the seat might well decline to take a
temporary appointment. But had the legislature truly sought to
assure that Alaska maintained competent representation in
Washington while eliminating any incumbency advantage for a
temporary appointee, it could have tailored H.B. 414 to forbid a
governors appointee from running for election after appointment.
In fact, the legislative history indicates that such a provision
was proposed and rejected.46 This casts considerable doubt on the
states claim that H.B. 414 is substantially the same as the
proposed initiative.
We conclude that the intent of the proposed initiative
is to strip the governor of appointment power, to ensure that
occupants of Alaskas seats in the United States Senate are chosen
by the voters, and to eliminate all of the perceived advantages
that an incumbent appointee might receive in a special or general
election to fill the vacancy. House Bill 414 preserves the power
of gubernatorial appointment in every case of a vacancy, it
allows vacancies in the United States Senate to be filled first
by executive appointment rather than only by the voters, and it
preserves potential incumbency advantages that might be conferred
on the executives appointee. Because the initiative and H.B. 414
seek to accomplish different objectives, they do not share a
common purpose and they are not substantially the same.
Accordingly, we hold that the initiative has not been voided by
enactment of H.B. 414.
B. Should the Constitutionality of the Proposed Initiative
Be Reviewed Before the November 2004 Election?
The state argues that, even if the petition were not
voided on grounds of substantial sameness, we should hold that it
cannot be placed on the November ballot because the Seventeenth
Amendment to the U.S. Constitution does not allow the proposed
change to be made by initiative. Trust the People and the amicus
respond that pre-election review of the initiative is premature
and that we should only determine its constitutionality if the
proposal is adopted at the election. The state rejects this
contention, arguing that pre-election judicial review is
appropriate because, it claims, the initiative violates the
Seventeenth Amendment. Because we conclude that pre-election
judicial review may extend only to subject matter restrictions
that arise from a provision of Alaska law that expressly
addresses and restricts Alaskas constitutionally-established
initiative process or to proposals that are clearly unlawful
under controlling authority, we agree with Trust the People and
the amicus that pre-election review is not appropriate in this
case. Accordingly, we affirm the decision of the superior court
holding that the lieutenant governor could not engage in pre-
election review of the Seventeenth Amendment issue.
As we have recognized on other occasions, articles XI
and XII are the only provisions of the Alaska Constitution that
explicitly mention the initiative process.47 Specifically,
article XI, section 7, describes certain express subject-matter
restrictions:
The initiative shall not be used to
dedicate revenues, make or repeal
appropriations, create courts, define the
jurisdiction of courts or prescribe their
rules, or enact local or special
legislation.[48]
Article XII, section 11, in turn, specifies that the electorates
power to legislate by initiative is always subject to these
express restrictions; section 11 also more generally recognizes
that the initiative process may be implicitly restricted by other
provisions, but only if such provisions make the process clearly
inapplicable:
Unless clearly inapplicable, the
law-making powers assigned to the legislature
may be exercised by the people through the
initiative, subject to the limitations of
Article XI.[49]
These provisions largely define the permissible scope
of pre-election subject-matter review in Alaska.50 Early on, in
Boucher v. Engstrom,51 we approvingly noted the general rule that
courts will refrain from giving advisory opinions on the
constitutionality of statutes, but recognized that an exception
to this principle would apply in regard to review of initiatives
prior to submission to the electorate for approval.52 As we
expressly described it in Boucher, this exception applied to a
limited set of challenges:
This court, . . . although recognizing
the general limitation that only enacted
legislation is subject to judicial review,
[has] held that our courts are empowered to
review an initiative to ascertain whether it
complies with the particular constitutional
and statutory provisions regulating
initiatives.[53]
We stressed that it was necessary to apply the exception to this
set of challenges in order to enforce the meaning of the
initiative process as set out in Alaskas constitution. We said:
The people for their own protection have
provided that the initiative shall not be
employed with respect to certain matters.
Unless the courts had power to enforce those
exclusions, they would be futile.[54]
In initiative cases decided since Boucher, we have
consistently restated the language of Boucher that limits pre-
election review to cases involving compliance with the particular
constitutional and statutory provisions regulating initiatives.55
Most recently, in Alaska Action Center, Inc. v. Municipality of
Anchorage,56 referring to this type of challenge, we stressed that
[s]eparation of powers principles are not offended by this
procedure, as these restrictions were devised to prevent certain
questions from going before the electorate at all.57
Alaska Action Center involved a challenge to a
municipal clerks decision rejecting a proposed initiative on the
ground that it provided for an appropriation, in violation of
article XI, section 7, and AS 29.26.100. In deciding the claim,
we expressly followed the conventional rule that an initiative
may be reviewed before going to the voters to ensure compliance
with the particular constitutional and statutory provisions
regulating initiatives.58 Finding that [t]he proscriptions of AS
29.26.100 and article XI, section 7 of the Alaska Constitution
are such limitations, we concluded that pre-election review was
proper.59 Thus, Alaska Action Center simply applied the test
articulated in Boucher. To be sure, Alaska Action Center
distinguished this kind of reviewable subject-matter challenge
from [o]ther challenges . . . grounded in general contentions
that the provisions of an initiative are unconstitutional. 60 But
this distinction simply describes a baseline for pre-election
review; although it usefully points out that pre-election review
of an initiative proposal usually involves a subject-matter
challenge as opposed to a general claim of substantive
illegality it does not say that all subject-matter challenges
must automatically qualify for full pre-election review.
By consistently pointing out that pre-election review
is needed to ensure compliance with the particular constitutional
and statutory provisions regulating initiatives that is, with
those restrictions specifically devised to prevent certain
questions from going before the electorate our cases establish
that pre-election review does not encompass all potential subject-
matter restrictions, but extends only to the restrictions imposed
by Alaska constitutional and statutory provisions regulating the
initiative process. So interpreted, our cases make pre-election
review appropriate to ensure compliance with the express
initiative restrictions set out in article XI, section 7. Our
cases similarly allow pre-election review, under article XII,
section 11, to ensure compliance with subject-matter restrictions
set out in other legal provisions; but under the express terms of
article XII, section 11, the scope of review would be limited to
cases of obvious non-compliance cases where the initiative
process would be clearly inapplicable.61
By contrast, the state argues that our cases stand for
the proposition that whenever the issue is whether voters can
enact the law by initiative, it is appropriate for pre-election
review. The state thus argues for a broad rule that would allow
a full range of pre-election review of all subject-matter
challenges, regardless of the source of the restriction. In
arguing that full pre-election review is appropriate for even
those subject-matter challenges not enumerated in Alaska law, the
state overlooks the limiting language noted above that we have
employed in several cases.
The state argues that we reviewed the constitutionality
of an initiative prior to its placement on the ballot in Yute Air
Alaska, Inc. v. McAlpine.62 Challengers to the initiative in Yute
Air argued that the initiative was unconstitutional because it
concerned two subjects, which violated article II, section 13 of
the Alaska Constitution which requires that every bill be
confined to one subject;63 they also argued that the initiative
directed the executive to seek repeal of the Jones Act, and was
thus unconstitutional because it was not a proper subject for an
initiative under article XI, section 1 of the Alaska
Constitution, which limits the use of the initiative to the
enactment of laws.64 We resolved these questions on the merits
before the initiative was placed on the ballot.65 The state
argues that because we reviewed an initiative to determine if it
violated a subject matter limitation not enumerated in article
XI, section 7 of the Alaska Constitution in Yute Air, we should
now likewise determine whether the people are restricted from
enacting by initiative legislation on the subject of filling of
senate vacancies before the election. But unlike the challenge
raised here, which alleges that the Federal Constitution
prohibits enactment by initiative, the challenge to the
initiative in Yute Air concerned two limitations placed on the
initiative process by the Alaska Constitution. Thus, pre-
election review in Yute Air did not violate our holding in
Boucher v. Engstrom that such review should be limited to
ascertaining whether an initiative is in compliance with
constitutional provisions that regulate legislative enactment via
initiative.66
The state also relies on Alaskans for Legislative
Reform v. State,67 in which an initiative that would have imposed
term limits on legislators was denied a place on the ballot. We
note at the outset that no party in that case opposed pre-
election review. As Judge Shortell noted in his opinion (adopted
by this court), the issue was not raised at the trial level
because both parties [had] the intention of obtaining pre-
election dispositive review.68 It appears that there was no
consideration by any court at any level of the question whether
pre-election review was proper. Second, to the extent that
Alaskans for Legislative Reform supports pre-election review of
claims that a term limits initiative is unconstitutional, it
appears to have been overruled by Kodiak Island Borough v.
Mahoney,69 where we declined to allow pre-election review of a
term-limits proposal.70 Finally, since Judge Shortell ordered the
initiative removed from the ballot, the case was clearly ripe for
immediate review;71 indeed, the only way for this court to avoid
pre-election review would have been to declare sua sponte that
Judge Shortell erred in addressing the constitutional issue.
The state also relies on Brooks v. Wright,72 arguing
that it raised a subject-matter claim that was subject to pre-
election review. But for present purposes, it is crucial to take
account of the exact nature of the claim raised in Brooks. The
case involved an initiative proposing to ban all use of wolf
snares. The challengers alleged that article VIII of the Alaska
Constitution did not allow the initiative process to be used for
game-management purposes because the language of that
constitutional provision and the provisions grant of trustee-like
powers to the state implicitly gave the legislature exclusive
authority to manage Alaskas natural resources.73 But while basing
their pre-election challenge on this constitutional theory, the
initiatives opponents did not actually seek review of their
article VIII claim, as such. Instead, they argued more narrowly
that the implied subject-matter restriction imposed by article
VIII violated the clearly inapplicable test of article XII,
section 11: under Article XII, the initiative process is clearly
inapplicable to resource management decisions[.]74 So asserted,
the challenge in Brooks did more than claim a subject-matter
restriction embedded in article VIII; it further asserted that
this restriction implicated one of the Alaska Constitutions
particular provisions governing the proper scope of initiatives:
article XII.
Our opinion in Brooks resolved the constitutional claim
by applying article XII, section 11s clearly inapplicable test.
Our opinion acknowledged that [p]re-election review of challenges
to ballot initiatives is limited to ascertaining whether [the
initiative] complies with the particular constitutional and
statutory provisions regulating initiatives 75 and that [a]rticles
XI and XII are the only provisions of the Alaska Constitution
that explicitly mention the initiative process.76 After noting
that the challengers did not claim a violation of one of the
enumerated Article XI limitations, we took pains to point out
that they argued, instead, that the initiative process was
clearly inapplicable to resource management decisions under
article XII.77 We then applied the article XII standard and
concluded that neither prong of the challengers claim that
article VIII impliedly restricted using the initiative process to
ban wolf snares was sufficiently persuasive to establish that the
proposed wolf-snare ban was clearly inapplicable to the
initiative process under Article XII.78
Brooks thus based its ruling on the article VIII issue
by using article XIIs clearly inapplicable standard. By so
doing, it treated the claim as a permissible pre-election
challenge under the narrow rule enunciated in Boucher, which, as
already mentioned, expressly limits the scope of pre-election
review to particular constitutional [or] statutory provisions
regulating initiatives. Thus, Brooks strongly supports the rule
that when an alleged subject-matter violation hinges on an
implied constitutional restriction outside the specific
restrictions enumerated in article XI, section 7 as the
challenge did in Brooks it is eligible for pre-election review
only if it meets article XII, section 11s clearly inapplicable
test.
The state also relies on Whitson v. Anchorage.79 But
that case supports the conclusion that pre-election review is not
appropriate here. In Whitson, the Municipality of Anchorage
challenged an initiative in court before submitting it to the
voters. The municipality contended that, if enacted, the
proposed initiative would violate provisions of state law
implicitly limiting the electorates right to enact an ordinance
on the topic covered by the proposed initiative.80 In opposing
this challenge, the initiatives proponents argued that the
challenge was premature and could not be decided before the
election. But we disagreed, specifically concluding that the
provision qualified for pre-election review because it plainly .
. . would conflict with state law and was in clear conflict with
a state statute.81 Whitson thus illustrates an application of the
clear controlling authority exception to the general rule against
pre-enactment review that we referred to in Alaska Action Center.82
In sum, a narrow interpretation of the permissible
scope of pre-election review is faithful to our case law,83 is
supported by the strong policies that generally disfavor advisory
opinions, and is justified by the limited purpose of pre-election
review to protect the Alaska Constitutions express provisions
defining the initiative process.84 Because the subject matter at
issue here filling senate vacancies is not specifically barred
from the initiative process under article XI, section 7, nor
clearly inapplicable under article XII, section 11, nor is its
resolution clear under controlling authority, we conclude that
the proposed initiative meets the test for submission to the
voters. Its ultimate compliance with the Seventeenth Amendment
falls outside the proper scope of the lieutenant governors pre-
election review.
V. CONCLUSION
Because H.B. 414 is not substantially the same as
03SENV, the initiative is not void under the Alaska Constitution.
Because the states Seventeenth Amendment argument does not
involve a subject matter restriction arising from a provision of
Alaska law that expressly addresses and restricts Alaskas
constitutionally-established initiative process or a proposal
that is clearly unlawful under controlling authority, we AFFIRMED
the superior courts decision to deny pre-election review of the
Seventeenth Amendment issue.
For these reasons, we directed the lieutenant governor
to place Trust the Peoples initiative, 03SENV, on the general
election ballot.
_______________________________
1 The Order provided:
Trust the People, an initiative
committee, submitted an initiative that
proposed to determine the manner in which
vacancies in Alaskas two United States Senate
seats would be filled; after some delay in
the certification process, Trust the People
filed suit against Lieutenant Governor Loren
Leman. The Lieutenant Governor eventually
denied certification of the initiative,
determining that the Seventeenth Amendment of
the United States Constitution prohibited
enactment of the proposed law by initiative.
Following oral argument on the issue,
Superior Court Judge Mark Rindner ruled that
the constitutionality of the initiative
should not be considered unless and until the
voters enact the initiative into law;
accordingly, he held that the Lieutenant
Governor erred by denying certification of
initiative and ordered him to certify the
initiative. Pursuant to the superior courts
order, the initiative was certified; it was
subsequently placed on the ballot for the
November 2004 statewide general election.
On June 5, 2004 House Bill (H.B.) 414,
An Act relating to filling a vacancy in the
office of United States senator, and to the
definition of political party; and providing
for an effective date was enacted into law.
On June 15, 2004 the Lieutenant Governor
removed the initiative from the ballot and
the state moved to dismiss this appeal as
moot on the grounds that H.B. 414 and the
initiative were substantially the same, and
that the initiative was therefore void under
article XI, section 4 of the Alaska
Constitution. Trust the People filed a
separate case in superior court seeking a
declaratory judgment that the proposed
initiative must be placed on the November
ballot. On July 8, 2004 we issued an order
in which we informed the parties that we
would consider the issue of substantial
sameness when we considered the merits appeal
involving the Seventeenth Amendment from the
first superior court action. Oral argument
was held before this court on July 21, 2004.
It is Ordered:
1. The law enacted to supplant the
initiative (HB 414) is not substantially the
same as the initiative because (1) it
provides that the governor will fill a senate
vacancy by appointment, whereas the
initiative provides that all vacancies will
be filled by popular election, and (2)
eliminating gubernatorial appointments from
the process of filling senate vacancies is a
primary objective of the initiative.
Therefore, the initiative is not void, and
the states motion to dismiss this appeal as
moot is DENIED.
2. Judge Rindner did not err in
declining to consider whether the initiative
violates the Seventeenth Amendment unless and
until it is approved by the voters and in
ruling that the lieutenant governor
wrongfully denied certification of the
initiative. The general rule is that a court
should not determine the constitutionality of
an initiative unless and until it is enacted.
There are two exceptions to this. First,
where the initiative is challenged on the
basis that it does not comply with the state
constitutional and statutory provisions
regulating initiatives, courts are empowered
to conduct pre-election review. Second,
courts are also empowered to conduct pre-
election review of initiatives where the
initiative is clearly unconstitutional or
clearly unlawful. Neither exception applies
to this case. The first exception does not
apply because the present challenge does not
involve state constitutional and statutory
provisions regulating initiatives. The
second exception does not apply because the
initiative is not clearly unconstitutional:
whether the Seventeenth Amendment permits or
precludes lawmaking by initiative with
respect to filling senate vacancies presents
an open and fairly debatable constitutional
question. The decision of the superior
court, deferring review of the initiative and
directing the lieutenant governor to certify
the initiative, is AFFIRMED.
3. The initiative entitled An Act
Relating to Filling a Vacancy in the Office
of United States Senator (03-SENV) shall be
placed on the ballot.
4. An opinion will follow.
2 Alaska Const., art. XI, 1. There are certain subject
matter limitations on the peoples power to enact initiatives.
Initiatives shall not be used to dedicate revenue, make or repeal
appropriations, create courts, define the jurisdiction of courts
or prescribe their rules, or enact local or special legislation.
Alaska Const., art. XI, 7. The proposed initiative now before
the court does not implicate any of these limitations.
3 Alaska Const., art. XI, 2.
4 See Ch. 4, 1, SLA 2002. This statute was amended on
June 5, 2004 by H.B. 414. See Ch. 50, SLA 2004.
5 See AS 15.40.140-.220.
6 Section 1. AS 15.40.140 is amended to read:
Sec. 15.40.140. Condition and time of
calling special election. When a vacancy
occurs in the office of United States senator
or United States representative, the governor
shall, by proclamation, call a special
election to be held on a date not less than
60, nor more than 90, days after the date the
vacancy occurs. However, if the vacancy
occurs on a date that is less than 60 days
before or is on or after the date of the
primary election in the general election year
during which a candidate to fill the office
is regularly elected, the governor may not
call a special election.
Section 2. AS 15.40 is amended by a adding a
new section to read:
Sec. 15.40.165. Term of elected senator. At
the special election, a United States senator
shall be elected to fill the remainder of the
unexpired term. The person elected shall
take office on the date the United States
Senate meets, convenes, or reconvenes
following the certification of the results of
the special election by the director.
Section 3. AS 15.40.200 is amended to read:
Sec. 15.40 200. Requirements of party
petition. Petitions for the nomination of
candidates of political parties shall state
in substance that the party desires and
intends to support the named candidate for
the office of United States senator or United
States representative, as appropriate, at the
special election and requests that the name
of the candidate nominated be placed on the
ballot.
Section 4. AS 15.40.220 is amended to read:
Sec. 15.40.220. General provisions for
conduct of special election. Unless
specifically provided otherwise, all
provisions regarding the conduct of the
general election shall govern the conduct of
the special election of the United States
senator or United States representative,
including provisions concerning voter
qualifications; provisions regarding the
duties, powers, rights, and obligations of
the director, of other election officials,
and municipalities; provision for
notification of the election; provision for
payment of election expenses; provisions
regarding employees being allowed time from
work to vote; provisions for the counting,
reviewing, and certification of returns;
provisions for the determination of the votes
and of recounts, contests, and appeal; and
provision for absentee voting.
Section 5. AS 15.40.310 is amended to read:
Sec. 15.40.310. General provisions for
conduct of special election. Unless
specifically provided otherwise, all
provisions regarding the conduct of the
general election shall govern the conduct of
the special election of the governor and
lieutenant governor, including provisions
concerning voter qualifications; provisions
regarding the duties, powers, rights, and
obligations of the director, of other
election officials, and of municipalities;
provision for notification of the election;
provision for payment of election expenses;
provisions regarding employees being allowed
time from work to vote; provisions for the
counting, reviewing, and certification of
returns; provisions for the determination of
the votes and of recounts, contests, and
appeal; and provision for absentee voting.
Section 6. AS 15.40.470 is amended to read:
Sec. 15.40.470. General provision for
conduct of special election. Unless
specifically provided otherwise, all
provisions regarding the conduct of the
general election shall govern the conduct of
the special election of state senators,
including the provisions concerning voter
qualifications; provisions regarding the
duties, powers, rights, and obligations of
the director, of other election officials,
and of municipalities; provision for
notification of the election; provision for
payment of election expenses; provisions
regarding employees being allowed time from
work to vote; provisions for the counting,
reviewing, and certification of returns;
provisions for the determination of the votes
and of recounts, contests, and appeal; and
provision for absentee voting.
Section 7. AS 15.40.010, 15.40.050,
15.40.060, 15.40.070, 15.40.075, 15.40.130,
and [] 15.40.135 are repealed.
Section 8. Effective Date. This Act takes
effect January 1, 2005.
7 Article XII, section 11 of the Alaska Constitution
provides:
As used in this constitution, the terms by
law and by the legislature, or variations of
these terms, are used interchangeably when
related to the law-making powers. Unless
clearly inapplicable, the law-making powers
assigned to the legislature may be exercised
by the people though the initiative, subject
to the limitations of Article XI.
(Emphasis added.)
8 71 P.3d 896 (Alaska 2003). In Mahoney we held that a
municipal clerk,
in determining whether an initiative would be
enforceable as a matter of law, should only
reject a petition that violates any of the
liberally construed statutory or
constitutional restrictions on initiatives or
that proposes a substantive ordinance where
controlling authority establishes
unconstitutionality.
Id. at 900. See infra discussion at Part IV.B.
9 Trust the People v. State of Alaska, No. 3AN-03-12217
Ci. (Alaska Super., November 3, 2003).
10 H.B. 414, 23rd Legis., 2d Sess. (2004).
11 See bill history for H.B. 414, available at
http://www.legis.state.ak.us/basis (last visited July 27, 2004).
Under the Alaska Constitution, when the legislature is not in
session, the governor has twenty days to sign or veto a bill, or
it will become law without his signature. Alaska Const. art. II,
17. Because the governor neither signed nor vetoed H.B. 414, it
became law without his signature.
12 Trust the People v. Leman, No. 3AN-04-08185 Ci.
13 See State, Dept of Revenue v. Andrade, 23 P.3d 58, 65
(Alaska 2001) (questions of law reviewed de novo).
14 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).
15 See Bailey v. Alabama, 219 U.S. 219, 239 (1911) ([A
states] power to create presumptions is not a means of escape
from [federal] constitutional restrictions.).
16 The procedure for finding an initiative void on
grounds of substantial sameness is codified in AS 15.45.210:
If the lieutenant governor, with the formal
concurrence of the attorney general,
determines that an act of the legislature
that is substantially the same as the
proposed law was enacted after the petition
had been filed, and before the date of the
election, the petition is void and the
lieutenant governor shall so notify the
committee.
The lieutenant governors decision to remove an initiative from
the ballot on this ground is subject to judicial review. AS
15.45.240.
17 543 P.2d 731 (Alaska 1975).
18 Id. at 735.
19 Id. at 736.
20 Id.
21 Id. at 735 (quoting Constitution Convention Committees
Proposal No. 3) (emphasis added).
22 Id. at 736.
23 Id. at 737.
24 Id. at 736.
25 Id.
26 Id. at 737-38.
27 Id. at 736.
28 Id. at 737-39.
29 Id. at 739.
30 Id. at 739-40. As the dissent in Warren pointed out,
of the 19 separate sections of the initiative, only six are the
same as the statute, and [s]even sections have been eliminated
entirely by the statute. Id. at 741 (Erwin, J., dissenting).
31 See Falcon v. Alaska Pub. Offices Commn, 570 P.2d 469,
472 (Alaska 1977).
32 Ch. 30, 1, SLA 1998.
33 Trust the People argues that the proposed initiative
arose out of voter frustration with this change in the law.
According to Trust the People, the essential aims of the
initiative are to remove the appointment power from the Governor,
in direct response to Governor Murkowskis appointment of his
daughter to fill his own Senate seat, and to eliminate totally
the incumbency advantage for appointed Senators never elected by
the voters. The state does not agree with all aspects of Trust
the Peoples factual claims, which it argues are based on
unsubstantiated opinions. Our resolution of this case does not
require us to determine whether there is merit to the assertions
of Trust the People.
34 Falcon, 570 P.2d at 472 n.6.
35 See supra note 1.
36 See AS 15.45.180(a).
37 House Bill 414 provides that the governor need not call
a special election for U.S. senator where a vacancy occurs less
than sixty days prior to the primary election in a general
election year. Primary elections are generally held in the last
week of August, and general elections in early November, with the
results certified in late November or early December, at which
point the winning candidate is sworn in as senator. Therefore,
were a senatorial vacancy to occur in late June of a general
election year, the governors appointee would serve for roughly
five months, or until the end of November. See the State of
Alaska Division of Elections website, at
http://www.gov.state.ak.us/ltgov
/elections/homepage.html#results.
38 The Constitutional Convention Committees original
proposal also stated that [n]o law passed by initiative may
be . . . amended or repealed by the legislature for a period of
three years, but this too was changed to the present
constitutional language that an initiated law may not be repealed
by the legislature within two years of its effective date [but]
may be amended at any time . . . . Constitutional Convention
Committee Proposal No. 3, Section 4 (Dec. 9, 1955).
39 Warren v. Boucher, 543 P.2d 731, 737 (Alaska 1975).
40 See Alaska Const., art. XI, 6.
41 Alaska Const., art. XI, 4.
42 Warren, 543 P.2d at 740 (Erwin, J., dissenting).
43 Warren v. Thomas, 568 P.2d 400, 403 (Alaska 1977)
(considerable language changes in legislatures amendments of
popularly-initiated law only served to clarify and render the law
more precise, and thus did not repeal it).
44 Warren v. Boucher, 543 P.2d at 737.
45 Id. at 743 (Erwin, J., dissenting).
46 The minutes of the Senate State Affairs Committees
March 18, 2004 discussion of H.B. 414 indicate that Senator
Gretchen Guess proposed an amendment that would have prevented a
governors temporary senate appointment from standing for
reelection in a subsequent special election. Senator Guess
explained that she was worried that the temporary appointee has
an incumbency advantage, and that this would be at odds with the
intent of the initiative, which is to make a clean process that
is separate from an appointment. The amendment failed.
47 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).
48 Alaska Const., art. XI, 7. These restrictions are
mirrored in AS 15.45.010.
49 Alaska Const., art. XII, 11 (emphasis added). See
also Brooks, 971 P.2d at 1028-29 (describing constitutional
history of section 11 as indicating that its clearly inapplicable
language meant that initiative process was inapplicable only when
55 idiots would agree that it was inapplicable).
50 There is an additional basis for pre-election review in
Alaska, not argued in the case before us: [G]eneral contentions
that the provisions of an initiative are unconstitutional may be
considered pre-election only . . . if controlling authority
leaves no room for argument about its unconstitutionality.
Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d
989, 992 (Alaska 2004) (quoting Kodiak Island Borough v. Mahoney,
71 P.3d 896, 900 (Alaska 2003)) and Brooks, 971 P.2d at 1027. We
provided an example of the type of clearly controlling authority
that might allow a proposed initiative to be removed from the
ballot: The initiatives substance must be on the order of a
proposal that would mandat[e] local school segregation based on
race in violation of Brown v. Bd. of Educ. before the clerk may
reject it on constitutional grounds. Alaska Action Ctr., 84
P.23d at 992 (citations omitted). In this case, the state
concedes that the provisions of the proposed initiative would be
perfectly constitutional and above reproach if enacted by the
legislature.
51 528 P.2d 456 (Alaska 1974) overruled on other grounds
by McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988).
52 Boucher, 528 P.2d at 460.
53 Id. (citing Walters v. Cease, 394 P.2d 670 (Alaska
1964); Starr v. Hagglund, 374 P.2d 316 (Alaska 1962)) (emphasis
added).
54 Id. (quoting Bowe v. Secy of the Commonwealth, 69
N.E.2d 115, 128 (Mass. 1946)).
55 See, e.g., Brooks, 971 P.2d at 1027 (quoting Boucher);
Alaska Action Ctr., 84 P.3d at 992 (quoting Brookss quotation
from Boucher); Whitson v. Anchorage, 608 P.2d 759, 761-62 (Alaska
1980).
56 84 P.3d 989.
57 Id. at 992.
58 Id.
59 Id. at 993.
60 Id. at 992 (quoting Brooks, 971 P.2d at 1027).
61 See, e.g., Kodiak Island Borough v. Mahoney, 71 P.3d
896, 900 (Alaska 2003) (comparing section 11s clearly
inapplicable requirement to stringent test applicable when
executive order declares statute unconstitutional); Brooks, 971
P.2d at 1029 (describing section 11s clear idiot test).
62 698 P.2d 1173 (Alaska 1985).
63 Id. at 1175.
64 Id.
65 Id. at 1177.
66 528 P.2d 456, 460 (Alaska 1974).
67 887 P.2d 960 (Alaska 1994).
68 Id. at 962 n.6.
69 71 P.3d 896 (Alaska 2003).
70 Id. at 897.
71 Alaskans for Legislative Reform, 887 P.2d at 966.
72 971 P.2d 1025 (Alaska 1999).
73 Id. at 1027-29.
74 Id.
75 Id. at 1027 (citing Boucher, 528 P.2d at 460).
76 Id.
77 Id.
78 Id. at 1030, 1033.
79 608 P.2d 759 (Alaska 1980).
80 Id. at 761.
81 Id. at 761-62.
82 84 P.3d 989, 992 (Alaska 2004). See discussion supra
note 50.
83 See, e.g., Brooks, 971 P.2d at 1027 (quoting Boucher,
528 P.2d at 460 overruled on other grounds by McAlpine v. Univ.
of Alaska, 762 P.2d 81 (Alaska 1988)); Alaska Action Ctr., 84
P.3d at 992 (quoting Brookss quotation from Boucher).
84 Boucher, 528 P.2d at 460. See also Citizens for Tort
Reform v. McAlpine, 810 P.2d 162, 168-70 (Alaska 1991).
