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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. North West Cruise Ship Association of Alaska, Inc. v. State, Office of Lieutenant Governor, Division of Elections (10/13/2006) sp-6064
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
| NORTH WEST CRUISESHIP | ) |
| ASSOCIATION OF ALASKA, | ) Supreme Court No. S- 12232 |
| INC., ALASKA HOTEL AND | ) |
| LODGING ASSOCIATION, INC., | ) Superior Court No. |
| ALASKA STEAMSHIP | ) 3AN-05-04406 CI |
| ASSOCIATION, INC., ALASKA | ) |
| TRAVEL ADVENTURES, INC., | ) |
| ALASKA TRAVEL INDUSTRY | ) O P I N I O N |
| ASSOCIATION, INC., CHILKAT | ) |
| RIVER ADVENTURES, INC., | ) No. 6064 - October 13, 2006 |
| CHILKOOT GARDENS, INC., | ) |
| CRUISE LINE AGENCIES OF | ) |
| ALASKA, LLC, ROBERT CARLIN | ) |
| DONAHUE, JR., GREATER SITKA | ) |
| CHAMBER OF COMMERCE, INC., | ) |
| KETCHIKAN VISITORS BUREAU, | ) |
| INC., MAHAYS RIVERBOAT | ) |
| SERVICE, INC., RESOURCE | ) |
| DEVELOPMENT COUNCIL FOR | ) |
| ALASKA, INC., SEIBU ALASKA, | ) |
| INC., and SKAGWAY STREET | ) |
| CAR COMPANY, INC., | ) |
| ) | |
| Appellants, | ) |
| ) | |
| v. | ) |
| ) | |
| STATE OF ALASKA, OFFICE | ) |
| OF LIEUTENANT GOVERNOR, | ) |
| DIVISION OF ELECTIONS, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Jeffrey M. Feldman and R. Scott
Taylor, Feldman Orlansky & Sanders,
Anchorage, and Susan A. Burke, Gross & Burke
PC, Juneau, for Appellants. Sarah J. Felix,
Assistant Attorney General, and David M.
M rquez, Attorney General, Juneau, for
Appellee. Layla A. Hughes, Earthjustice,
Juneau, for Amici Curiae Alaska Center for
the Environment, Alaska Community Action on
Toxics, Alaska Public Interest Research
Group, Cook Inlet Keeper, Northern Alaska
Environmental Center, and Responsible
Cruising in Alaska.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
This appeal arises out of a dispute over whether the
sponsors of an initiative petition secured sufficient signatures
to allow the initiative to be placed on the August 2006 ballot.
The initiative is sponsored by a group called Responsible
Cruising in Alaska (RCA) and is aimed at imposing additional
taxes and a number of new operational and regulatory requirements
on the cruise ship industry.1 The initiative was given the
designation 03CTAX.
To support the placement of the initiative on the
ballot, RCA was required to gather a minimum of 23,286 signatures
from qualified voters in at least twenty-seven election districts
by October 19, 2004. The lieutenant governor, assisted by the
Division of Elections (Division), verified the submitted
signatures on October 19, 2004 and ultimately determined that RCA
had exceeded the number of signatures required to support the
initiative by 138 votes.2 The lieutenant governor therefore
directed that the initiative be placed on the 2006 statewide
primary election ballot.
On January 18, 2005, North West CruiseShip Association
of Alaska and fourteen other organizations and individuals (North
West) filed a complaint requesting a declaratory judgment that
the lieutenant governor and the Division of Elections had not
verified the signatures in accord with statutes and regulations
and seeking an injunction against placement of 03CTAX on the
ballot. North West subsequently filed a motion for summary
judgment, and the Division filed a cross-motion for summary
judgment. The superior court concluded that the Division had
substantially complied with the statutes and regulations
governing the process used to verify whether the signatures
submitted were those of qualified voters and granted summary
judgment to the Division.
Because the issues raised in this case required
expedited resolution due to the deadlines for printing the
ballots in advance of the August 2006 election, we issued an
order on May 11, 2006, affirming the superior courts decision
granting summary judgment to the State, with a written opinion to
follow.3 This opinion sets out our reasons for affirming the
superior court.
Because we agree with Superior Court Judge William F.
Morses conclusions on each of the issues raised on appeal, we
adopt the superior courts order of February 9, 2006, attached as
Appendix A, to the extent consistent with our opinion.4 But due
to their importance, we briefly address below several of the
issues raised by North West.
II. STANDARD OF REVIEW
The interpretation of constitutional and statutory
provisions presents questions of law that we subject to our
independent review.5 In applying the independent judgment
standard, we adopt the rule of law that is most persuasive in
light of precedent, reason, and policy.6
III. DISCUSSION
North West attacked the validity of the submitted
signatures on four grounds. In its first challenge, North West
argues that it was improper for the Division to certify 1,202
signatures of persons whose status as registered voters at the
time they signed the petition booklets was unknown. Under both
the Alaska Constitution7 and AS 15.45.120,8 a person must be a
qualified voter at the time he or she signs a petition. The
Division interprets qualified voter to mean registered voter.9
The petition booklets in this case were prepared by the Division
and did not include a space for a date by each signature.10 As a
result, the Division staff accepted signatures from persons who
were listed on the voter registration rolls as registered voters
as of the date that the circulator certified the petition
booklet.
Although the Divisions method of auditing the
signatures may have been somewhat imprecise, in that a
subscribers voting registration status could only be verified as
of the date the petitions were filed, the audit was nevertheless
reasonable given that there was no statutory requirement that
each signature be dated at the time of the audit.11 Our analysis
would be different had the legislature affirmatively required the
signatures to be individually dated. But here there is no
question that the Division fully complied with what the statutes
and its own regulations required at the time. We further note
that the petition booklets were prepared with several safeguards,
including (1) a warning that anyone who signs the petition
knowing that he or she is not a qualified voter is guilty of a
misdemeanor; (2) directions to the petition circulators that each
subscriber must be a registered Alaskan voter; and (3) a
certification affidavit from the petition circulator attesting,
under penalty of perjury, that the signatures in each petition
booklet were drawn from persons who were qualified voters on the
date of the signature. The training materials provided to
petition circulators also emphasized that the subscribers must be
registered voters. Given these additional safeguards, we
conclude that the 1,202 signatures were properly counted.
Second, North West challenges 233 of the 254 submitted
petition booklets because the booklets were self-certified by
their circulators. Alaska Statute 15.45.130 requires that
circulators certify by an affidavit that they have complied with
the statutory requirements governing the collection of
signatures. Alaska Statute 09.63.020(a) allows self-
certification when a notary or other official authorized to
administer an oath is unavailable. But the statute also requires
that the circulator attempting to self-certify must provide a
place of execution.12 The petition booklets contained a space for
the affidavit to be notarized and also allowed the circulator to
self-certify but neglected to provide a space for place of
execution. North West therefore argues that these booklets
should be rejected for two reasons: (1) because none of the self-
certifications provided a place of execution; and (2) because the
booklets submitted by circulators residing in Anchorage were self-
certified rather than notarized despite the fact that many
notaries and other qualified officials work or reside in
Anchorage.
Neglecting to include the place of execution in a self-
certification is a technical violation of AS 09.63.020(a). But
the purpose of certification is to require circulators to swear
to the truthfulness of their affidavits. That purpose is readily
achieved by requiring the circulators to swear that they had
stated the truth by signing under penalty of perjury. The
failure to write in the name of the place of execution does not
reduce the force of that assertion. Furthermore, as we have
previously noted, we liberally construe the requirements
pertaining to the peoples right to use the initiative process so
that the people [are] permitted to vote and express their will on
the proposed legislation.13 We therefore resolve doubts as to
technical deficiencies or failure to comply with the exact
procedural requirements in favor of the accomplishment of that
purpose.14 Because the failure to provide a place of execution is
a technical deficiency that does not impede the purpose of the
certification requirement, we conclude that the petition booklets
should not be rejected on these grounds.
North Wests second contention concerning the self-
certifications that it cannot possibly be true that notaries
were unavailable to the circulators residing in Anchorage and
that therefore the self-certified petitions should be
disqualified essentially requires that we read the word
unavailable in AS 09.63.020(a) to mean that self-certification is
not allowed if a notary or other official authorized to take an
oath is present in a circulators hometown or larger community.
But the petition form contained no definition of unavailable or
instructions regarding the determination of a notarys
unavailability under the statute. Furthermore, the language of
AS 09.63.020 does not establish a presumption that if a community
includes a notary, that notary is available. As the statute
includes no language suggesting that the term unavailable be
interpreted in a restrictive manner, we decline to do so here.
And, again, the fact that the circulators signed the self-
certifications under penalty of perjury provides a safeguard. We
therefore conclude that the self-certified petition booklets were
properly accepted by the Division.
Third, North West challenges all of the signatures
contained in two petition booklets because one page in each
booklet failed to include the paid by information required by
statute. Former AS 15.45.090(5) required that the name of the
person or organization that has agreed to pay the circulator be
included on each page of a petition booklet. Pursuant to the
form of AS 15.45.130(8) in effect at that time, the circulator
must attest that he or she placed this information in bold
capital letters in the space provided before the circulation of
the booklet.15 The regulation implementing the statute, 6 AAC
25.240(g)(2), provides that the signatures contained in a
petition booklet will not be counted if the circulator did not
complete the information on each signature page as required by AS
15.45.130(8). (Emphasis added.) In sum, the Divisions own
regulations bar it from counting any of the signatures in an
entire petition booklet that failed to provide the paid by
information on each and every page. But in this case, two
booklets each contained a single page that lacked the required
information. Instead of disqualifying all signatures from each
booklet, the Division only disqualified the signatures from the
pages that lacked the paid by information and counted the
remaining signatures on the pages that contained the required
information.
We conclude that the Division construed its own
regulations in a manner that struck a careful balance between the
peoples right to enact legislation by initiative and the
regulations requiring that potential petition subscribers be made
aware that the circulators may have a motivation to induce them
to sign the petition other than a personal belief in the value of
the initiative. Those signatures from persons who were clearly
unaware that the circulator was or was not being paid were
correctly discarded, but those signatures from persons who had
been made aware of the issue were properly retained. The
Divisions construction of its own regulations is therefore in
line with our directive in Fischer v. Stout to seek a
construction . . . which avoids the wholesale
dis[en]franchisement of qualified electors.16 Again in light of
the fact that we have adopted a rule of liberal construction with
regard to statutory initiative procedures,17 we conclude that
counting the signatures from the pages containing the proper paid
by information reflects the balance sought by the legislature
between the peoples right to legislate by initiative and the goal
of ensuring that petition subscribers are well-informed upon
signing.
Finally, North West challenges two groups of signatures
from persons who did not provide a physical residence address.
At that time, AS 15.45.120 provided that [a]ny qualified voter
may subscribe to a petition by signing the voters name. The
Division implemented this statute by requiring that each
subscriber provide a physical residence address.18 In this case,
4,001 subscribers did not provide a physical residence address
but rather provided a mailing address in the form of a post
office box number, rural box number, or general delivery
location. Another sixty-five subscribers provided either no
address or only partial address information, but all sixty-five
provided another identifier such as a voter registration number
or social security number. As a result, North West argues,
neither group of signatures was properly counted.
The purpose of the address information is to provide
sufficient information to verify that the subscribers were
registered voters. The Division explained that it does not
discount a signature for failure to provide a physical residence
address when the signer provides a mailing address that is
sufficient to verify the validity of the signature. The Division
also explained that it interprets 6 AAC 25.240(h)(1)19 to mean
that a subscription lacking an address or containing a partially
complete address may be accepted if the subscriber provides an
identifier such as date of birth, voter number, or social
security number with which to verify the subscribers identity as
a registered voter. Those subscribers who voluntarily provided
another identifier such as a social security number or voter
number certainly provided enough information to verify whether
they were registered voters in Alaska at the time of signature.
Because all of these subscribers provided information sufficient
to verify their status as registered voters, we once again
conclude that the Division has the discretion to interpret the
statute and its own regulations in a manner that furthers the
right to legislate by initiative, and we affirm the superior
courts conclusion that both groups of signatures were properly
counted.
IV. CONCLUSION
For these reasons and those discussed in Judge Morses
attached order, we AFFIRM the grant of summary judgment to the
Division and the denial of summary judgment to North West.
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
NORTHWEST CRUISESHIP )
ASSOCIATION OF ALASKA, INC., )
ALASKA HOTEL AND LODGING )
ASSOCIATION, INC., ALASKA )
STEAMSHIP ASSOCIATION, INC., )
ALASKA TRAVEL INDUSTRY )
ASSOCIATION, INC., CHILKAT )
RIVER ADVENTURES, INC., )
CRUISE LINE AGENCIES OF )
ALASKA, LLC, ROBERT CARLIN )
DONAHUE, JR., GREATER SITKA )
CHAMBER OF COMMERCE, INC., )
MAHAYS RIVERBOAT SERVICE, )
INC., RESOURCE DEVELOPMENT )
COUNCIL FOR ALASKA, INC., )
SEIBU ALASKA, INC., and )
SKAGWAY STREET CAR )
COMPANY, INC., )
)
Plaintiffs, )
)
5. )
)
STATE OF ALASKA, DIVISION OF )
ELECTIONS and STATE OF )
ALASKA, )
)
Defendants. )
________________________________) Case
No. 3AN-05-04406 CI
ORDER1
Plaintiffs Motion for Summary Judgment
States Motion for Summary Judgment
Introduction.
In 2003 the lieutenant
governor certified the application
of a group calling itself
Responsible Cruising in Alaska
(hereafter sponsors) for an
initiative that would enact a
measure imposing certain taxes and
other requirements on cruise ships
that bring tourists to Alaska. The
lieutenant governor notified the
sponsors that they would need at
least 23,286 signatures from
qualified voters. By October 19,
2004 the sponsors gathered a total
of 27,877 signatures. The Division
of Elections assisted the
lieutenant governor in determining
that 4,417 signatures should be
rejected for various reasons.
Ultimately, the lieutenant governor
found that the sponsors had
collected 23,460 valid signatures,
174 more than was required. He
directed that the initiative be
placed on the 2006 statewide
primary election.
Plaintiffs are organizations
and individuals who claim to be
harmed by what they allege was the
lieutenant governors wrongful
determination that the sponsors
collected sufficient signatures
from qualified voters. They filed
suit seeking a ruling that the
sponsors had submitted insufficient
valid signatures and an injunction
prohibiting the placement of the
initiative on the ballot.
The State of Alaska, Division
of Elections (hereafter Division),
has moved for summary judgment.
Its primary argument is that
Plaintiffs claims are properly
understood to be challenges to the
form of the petition booklets
prepared by the Division. As such
the Plaintiffs lawsuit is alleged
to be untimely. The Plaintiffs
have opposed the Divisions motion
and cross-moved for summary
judgment. They allege that the
Division made numerous errors and
should have rejected far more than
an additional 174 signatures. The
Division opposes that motion. Six
organizations, including the
sponsors, have filed an amicus
brief supporting the Division.
All parties agree that there
are no genuine issues of material
fact that preclude summary
judgment. They disagree on the
legal significance of the
undisputed facts. The Court will
address the Divisions timing and
burden of proof arguments first and
then turn to each of the Plaintiffs
arguments, tracking the impact on
the number of valid signatures from
qualified voters.
Statute of Limitations and
Laches.
Once the application is
certified, the lieutenant governor
prepares the petition booklets and
delivers them to the sponsors.2
Persons qualified to be circulators
may then attempt to obtain the
signatures of qualified voters.3
No later than one year after notice
that the petition booklets were
ready for delivery, the circulators
file the petition booklets so that
the signatures can be examined and
counted.4 At the time of filing
each circulator must certify by
affidavit that certain criteria
have been met.5 The affidavit must
state in substance . . . (5) that
. . . the signatures are of persons
who were qualified voters on the
date of signature.6
Plaintiffs reason that there
is a set of signers who became
qualified to vote during the period
between the certification of the
application and the filing of the
petition booklet. They argue that
because the lieutenant governor did
not require that each signer
provide the date of signature,
there is no way to confirm that the
signer was a qualified voter at the
time of the signing. Some number of
this set of signers could have
become qualified to vote before the
filing of the petition booklets,
but after they signed.
Plaintiffs also challenge
those petition booklets filed by
any circulator who submitted the
requisite affidavit with his or her
own self-certified signature rather
than with [a] notarized or
witnessed signature.7 A person may
self-certify an affidavit when a
notary or public official is not
available.8 In that case,
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Plaintiffs argue that those
circulators who self-authenticated
their affidavits did so
inappropriately, that is, when a
notary public or authorized
official was available. Thus,
Plaintiffs argue, all of the
petition booklets accompanied by
self-certified affidavits should be
disregarded.
Plaintiffs point out that the
certification form prepared by the
Division includes spaces designated
for Signature of Circulator and
Date, but no space for the location
of the execution. Presumably the
missing location data would have
assisted the Division in
determining if a notary public or
other official actually was not
available to witness the
circulators signature of the
affidavit. For example, Plaintiffs
argue that there are many notaries
and officials in Anchorage and
other larger cities in Alaska, so
any circulator in those communities
should not have needed to self-
certify because authorized
officials were available.
Alaska Statute 15.45.240
establishes a thirty-day period
within which a person who claims to
have been harmed by a determination
made by the lieutenant governor
regarding the initiative process
must bring a suit to challenge the
determination. The Division argues
that these two claims of Plaintiffs
are properly understood to be
challenges to the form of the
petition booklet that the Division
prepared pursuant to AS 15.45.090.
The Division reasons that it could
have modified the petition booklets
to require a date of signature and
to clarify the option of self-
certification if Plaintiffs had
raised these objections shortly
after the Division prepared the
petition booklets. Since the
Plaintiffs did not bring this
objection within thirty days of the
lieutenant governors distribution
of the petition booklets, the
current challenge is untimely.
The Division also makes a
related argument of laches. It
points out that representatives of
some of the plaintiff organizations
were aware of the layout and
contents of the petition booklets
when they were initially provided
to the sponsors. The Division
argues that a challenger with
knowledge of the alleged
deficiencies of the petition
booklets should have raised its
objection when it learned of the
alleged deficiency, rather than
wait over a year until after the
sponsors filed their collected
signatures.
Both of the Divisions
untimeliness arguments turn on when
the alleged legal error by the
lieutenant governor was made. The
real genesis of the Plaintiffs
complaint was not the creation of
the particular format of the
petition booklet that did not have
a space for a signature date or
more restrictive instructions about
when self-certification of the
circulators affidavit was
permissible. Rather, it was the
decision of the lieutenant governor
to accept signatures that
Plaintiffs claim should have been
rejected for any number of reasons.
All of the challenged decisions of
the lieutenant governor and the
Division prior to the determination
that a sufficient number of
qualified voters had signed the
petition were merely preparatory
and of no ultimate significance.
It was the decision to place the
proposition on the ballot that is
the aggrievement that
triggers the thirty-day period, not the preliminary decisions
made concerning this petition.10
The statute of limitations and
laches arguments are without merit.
Constitutional Presumption and
Burden of Proof.
The parties disagree on which
side bears the burden of proof that
a signature should be counted.
This question implicates the role
of initiatives in Alaska.
In Alaska the voters ability
to bypass the legislature and
instead enact laws by initiative is
a right guaranteed by the state
constitution.11 The legislature
may prescribe additional procedures
for the initiative.12 It has done
so in AS 15.45.13 In Boucher v.
Engstrom, the Alaska Supreme Court
adopted a rule of liberal
construction of statutory
initiative procedures, in favor of
upholding proposed initiatives:
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Supreme Court held:
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1
5
Plaintiffs want the lieutenant
governor to have to prove that a
signature challenged by them was
properly counted. The Division
wants the Court to adopt a
presumption of validity in favor of
duly executed initiative petition
signatures.
Plaintiffs start from the
accurate statement that the
lieutenant governor has a
constitutional16 and statutory17
duty to allow an initiative on the
ballot only if the legislatively
prescribed number of qualified
voters have signed the petition.
From that duty the Plaintiffs
reason that the lieutenant governor
has the burden of proving that
there were sufficient signatures.
Thus, if a challenger claims a
particular set of signatures are
invalid, it would be the lieutenant
governors burden to prove that the
signatures were validly counted.
The Division disagrees. It
reasons that the initiative is a
constitutional mechanism reserved
to the voters and that any doubts
should be resolved in favor of
placing an initiative on the
ballot. The Division agrees that
the achievement of the minimum
number of signatures cannot be
waived or the number reduced, but
argues that once the lieutenant
governor decides to count a
signature, the burden of proving
that the signature should not have
been counted is on the challenger.
The Court concludes that the
Division has the better argument.
The Court interprets the general
propositions of Boucher and Frohne
to mean that the voters right to
enact laws by the initiative
requires the Court to interpret
legislative procedures in favor of
the exercise of the initiative
power. The lieutenant governor has
the initial burden of proving that
a sufficient number of signers
supported the initiative. Once the
lieutenant governor has done that,
the burden shifts to the
challengers to prove that a
particular signature or set of
signatures should not have been
counted.18
Determination of Signers
Qualification to Sign.
In order to be eligible to
sign a petition a person must be a
qualified voter.19 When the
circulator files the signed
petition booklets, he or she must
certify that the signatures are of
persons who were qualified voters
on the date of signature.20
The lieutenant governor
certified the application for this
initiative on October 8, 2003. The
Division provided the petition
booklets to the sponsors on
October 20, 2003. On October 19,
2004 the sponsors submitted the
petition booklets to the lieutenant
governor.
By checking [] against voter
registration lists, the Division
could determine whether a signer
was registered to vote (and thus
qualified to sign) before the first
date that the petition was
available for circulation (October
20, 2003). It could also determine
whether a signer was not qualified
because he or she only became
registered to vote after the last
date of circulation (October 19,
2004). This leaves a set of voters
who became registered to vote
during the year the petition was
circulating.21 Although the
Division knows the date the signer
became registered to vote within
this year, it does not know when
the signer actually signed because
that information is not required to
be indicated on the petition
booklet by the signer or the
circulator.
Plaintiffs reason that within
the set of signers who registered
to vote during the circulation
year, there is a subset of signers
who signed before registering.
This is almost certainly true,
although the number of signers
within the subset is unknown.22
The lieutenant governor is
obligated to determine whether a
sufficient number of qualified
voters signed the petition.
Plaintiffs argue that there is no
way to know how many signers who
registered to vote within the
circulation year had registered
before signing. Given this
uncertainty and the narrow margin
of signers beyond the minimum
needed, Plaintiffs argue the
lieutenant governor could not have
determined that enough qualified
voters signed.
Plaintiffs make a reasonable
argument. It may well be that the
better mechanism would have been to
require signers to date their
signature so that the signers
status as a registered voter could
be later confirmed. But there are
other ways to determine whether a
person is registered to vote at the
time of signing.
The legislature decided to
allow the use of one of those
alternatives. It required the
circulator to affy that the signer
was a registered voter at the time
of signing. The circulator may
gather evidence of the signers
status by asking the potential
signer if he or she was registered.
The potential signer might give a
false or mistaken affirmative
answer, but the legislature
apparently decided that the risk of
that inaccurate answer was not too
great in comparison with the
difficulties associated with other
means of determining the signers
status.23
The legislature could have
required a signer to show the
circulator a current voters
registration card. But some
(possibly very large) number and
percentage of potential signers
would not have that card with them
when they wanted to sign and thus
could not sign (at least not then).
The imposition of that requirement
would burden (if not eliminate) a
significant number of potential
signers seeking to exercise this
aspect of their right to initiate
laws directly. The legislature is
clearly empowered to authorize the
lieutenant governor to use this
less than precise means of
determining the signers
registration status.
The Division did not err in
relying upon a method of gathering
information from signers that
results in there being only an
admittedly imprecise means of
determining whether a certain set
of signers were registered voters
on the date of signing. The
lieutenant governor did not fail in
his duty to determine that a
sufficient number of qualified
voters signed the petition by using
this less-than-perfect method.
Self-Certified Affidavits of
Circulators.
Plaintiffs assert that 233 of
the 254 petition booklets that the
Division counted were self-
certified by the circulator.
Plaintiffs demand that all 233 be
rejected. They allege that the
circulators did not meet the
criteria for self-certification of
their affidavits.
The election statutes do not
specify how the circulators prepare
their affidavits. AS 15.45.130
merely requires that each petition
be certified by an affidavit. The
circulators who self-certified
their affidavits used a mechanism
that is expressly authorized by the
statute that sets forth the means
by which an affidavit may be
certified. AS 09.63.020 permits
self-certification if a notary
public or other official is
unavailable to take an oath,
affirmation or acknowledgment. The
statute does not define
unavailability.
There is no suggestion in AS
09.63.020 that there is a
geographical component to
unavailability, say a minimum
distance that the affiant must
travel to get to the nearest notary
or official. Nor is there any
suggestion that the affiant must be
willing to travel more than a
minimum amount of time to get to
the notary or official. Even if
the Court were to graft geographic
and/or temporal criteria onto the
concept of unavailability,
Plaintiffs have provided no
evidence that the circulators did
not meet those criteria. They
simply suggest that surely the
circulators must have been able to
find a notary or official in the
days before filing the petition
booklets.
The Court is unwilling to
assume that any single circulator
or number of circulators did not
properly self-certify, particularly
when the forms that the Division
provided to the sponsors and
circulators expressly indicated
that self-certification was an
option and gave no description of
what constituted the unavailability
of a notary public or an
official.24
The Division did not
improperly count the signatures on
petition booklets submitted by
circulators who certified the
petition booklets by a self-
certified affidavit.
Identification of Organization
Paying the Circulators by Initials.
Supporters of a petition can
pay to have circulators attempt to
gather signatures.25 When a
circulator files the petition
booklets to have the signatures
tallied, the circulators affidavit
must state in substance that . . .
if the circulator has received
payment or agreed to receive
payment for the collection of
signatures on the petition, the
name of each person or organization
that has paid or agreed to pay the
circulator for collection of
signatures on the petition.26 The
Plaintiffs seek to have the Court
prohibit the lieutenant governor
from counting 2,690 signatures
included on twenty-three petition
booklets wherein the circulator
identified the organization that
had provided or would provide
payment as RCA or RCIA rather than
as Responsible Cruising in
Alaska.27
The purpose in requiring these
disclosures appears to be two-fold.
First, the potential signer is
informed that some person or
organization is actually paying the
circulator to attempt to collect
signatures. That information may
be significant to some potential
signers regardless of who is paying
the circulator. The disclosures in
the twenty-three contested petition
booklets informed the potential
signers of the fact of payment.
Second, the potential signer
might consider the identity of the
payor to be a factor relevant to
whether to sign the petition. But
the usefulness of the mere name of
the payor in providing information
about the supporters or sponsors of
the petition is problematic. For
example, the full name of the payor
(and also the sponsor) of this
petition was Responsible Cruising
in Alaska. That name hardly gives
the potential signer much
information about the identity of
the members of that group, much
less their interests or viewpoints.
But the use of that identifier
satisfies the statutory requirement
that the identity of the payor be
disclosed on the petition booklet.
Plaintiffs argue that the use
in certain booklets of the initials
RCA or RCIA somehow deprived the
potential signer of the minimum
information about the payor that
the statutory requirement intends
the signer to have. But as a
practical matter the initials give
no more or less information than
the full name of the payor group.
The potential signers had the
same options regardless of whether
the booklet contained the
disclosure of the full name or only
the initials of the payor. The
potential signers could always ask
the circulator for more information
about the payor. Depending upon
the information given orally by the
circulator, if any, the persons
decided whether to sign. If the
person was uncomfortable with the
quality of information about the
individuals supporting or promoting
the petition or paying for the
circulator, then the potential
signers could simply have declined
to sign.
The Court concurs with the
implicit decision of the signers of
booklets that contained only the
initials of the circulators payor
that the signers were not deprived
of any significant information that
was required to be given to them.
The lieutenant governor did
not err in counting signatures in
booklets wherein the payor was
identified by initials rather than
its full name.
Lack of Required Circulator
Payment Disclosure.
The lieutenant governor
rejected 11 petition booklets
because they did not contain any
identification of the payor of the
circulator.28 Two of the petition
booklets each contained a single
page that did not include any
identification of the payor. The
lieutenant governor did not count
any signatures on those two pages,
but did count 272 signatures from
the other pages in the two
booklets.29 Plaintiffs argue that
the lieutenant governor should have
rejected the signatures on all
pages of those two petition
booklets.
When a circulator files a
petition to have the signatures
tallied, the circulators affidavit
must state in substance that . . .
the circulator prominently
placed . . . in bold capital
letters, the circulators name and,
if the circulator has received
payment or agreed to receive
payment for the collection of
signatures on the petition, the
name of each person or organization
that has paid or agreed to pay the
circulator for collection of
signatures on the petition. AS
15.45.130(8). There is no dispute
that the two pages of the two
booklets did not contain the
requisite identification of the
payor. The parties dispute the
remedy.
Alaska Statute 15.45.130
states in part that [i]n
determining the sufficiency of the
petition, the lieutenant governor
may not count subscriptions on
petitions not properly certified.
Plaintiffs contend that this gives
the lieutenant governor no
discretion: if any page of a
booklet is missing the identity of
the payor, then the lieutenant
governor must reject the entire
booklet. They are supported in
this interpretation by the
Divisions own regulation that
provides, [t]he signatures
contained in a petition booklet . .
. will not be counted in
determining the sufficiency of the
petition if . . . (2) [the]
circulator did not complete the
information on each signature page
as required by AS 15.45.130(8).30
The Division concedes, as it
must, that it acted in
contravention to its own regulation
when it only rejected the
signatures on the particular pages
that did not contain the identity
of the payor rather than the
signatures in the entire booklets.
But it argues that it was
justified, and even required, to
disregard its regulation by the
constitutional principles described
in Boucher and Frohne. Furthermore,
the Division argues that it was
guided by a recent superior court
decision in Hinterberger v.
State,31 applying those principles
to reject a practice established by
another of the Divisions
regulations.
In Hinterberger the superior
court reversed the lieutenant
governors decision not to count the
signatures contained in petition
booklets submitted by circulators
who did not comply with various
regulatory requirements.32 The
exact details of the supposed
noncompliance are unimportant.
What is important is how the
Division reacted to the superior
courts conclusion. The court had
written:
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3
3
The Court begins with the
language of AS 15.45.130. It has
two components, a list of
substantive requirements imposed
upon the circulator and a remedy
for noncompliance. The particular
substantive requirement is the
indication that some payor is
paying or will pay the circulator
and the identification of that
payor.34 If the circulator fails
to identify the payor then the
remedy is triggered: the lieutenant
governor may not count
subscriptions on petitions not
properly certified.35
Although neither party
discussed this issue, the Court has
to question the constitutionality
of the requirement that the
petition booklet contain the fact
of payment and name of payor. In
essence, the legislature is saying
that a qualified voter cannot
choose to place a proposition on
the ballot unless he or she not
only knows that the circulator is
being paid, but knows the identity
of the payor.
While many voters might well
appreciate and even demand that
information, many others do not
care a whit. Indeed, the voters
who signed on the two pages that
did not contain the payors identity
apparently were not frustrated by
the lack of that information. Why
should the legislature insist that
those voters know something the
voters themselves determined they
did not need to know? This
information might be helpful. But
can the legislature
constitutionally condition a voters
right to participate in the
initiative process upon receipt of
specific information? Even if it
can, perhaps some of the signers
did know who the payor was, either
because they looked on the other
pages of the booklet, asked the
circulator, or knew from another
source of the role played by the
group Responsible Cruising in
Alaska.
The scope of the legislative
remedy for a failure to identify
the payor is unclear. What
signatures did the legislature
intend the lieutenant governor
exclude if a page of the petition
booklet did not include the payors
identity? Alaska Statute 15.45.130
instructs that the lieutenant
governor not count subscriptions on
petitions not properly certified.
Does that mean that if the payors
identity is left off one page of
one booklet that the entire
petition is invalid, even though
ten times the minimum number of
signatures was submitted? That
would be an absurd result and one
that clearly would infringe upon
the voters right to an initiative.
Since the error that
Plaintiffs challenge was likely
(though not necessarily) the fault
of one or more individual
circulators, would it be reasonable
to construe the statute to mean
that if a circulator submitted a
booklet that contained one faulty
page that every booklet submitted
and all signatures gathered by the
circulator be disregarded? That
too would be an absurd and
unconstitutional result. The
signers on the other booklets all
had the requisite information.
There would be no reason to
preclude those signers from being
counted merely because the signers
of another booklet were not
informed of the payors identity.
The Division, by its
regulation, interpreted the statute
to mean that if any page in a
single booklet was defective, then
the entire booklet was disregarded.
Why is that result any more
reasonable than a decision to
reject all of the circulators other
booklets? The signers of the
other, proper pages of the booklet
with the defective page had all of
the requisite information, just as
did the signers of the booklets
that were entirely conforming.
The Court should endeavor to
construe a statute to avoid absurd
and unconstitutional results.36 An
aspect of the decision in Fischer
v. Stout 37 provides some guidance.