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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kohlhaas v. State (11/17/2006) sp-6072
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
| SCOTT KOHLHAAS, | ) |
| ) Supreme Court No. S- 11866 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-9640 CI |
| ) | |
| STATE OF ALASKA, OFFICE OF | ) |
| THE LIEUTENANT GOVERNOR, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6072 - November 17, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen Tan, Judge.
Appearances: Kenneth P. Jacobus, Anchorage,
for Appellant. Sarah J. Felix, Assistant
Attorney General, and David W. M rquez,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Scott Kohlhaas drafted an initiative calling for
Alaskas secession from the United States or, in the alternative,
directing the state to work to make secession legal, and
submitted the initiative, along with one hundred signatures, to
the lieutenant governor. Upon receiving the attorney generals
advice that the initiative was improper, the lieutenant governor
declined to certify the initiative for circulation. Kohlhaas
appealed to the superior court, which affirmed the lieutenant
governors actions. Because the initiative seeks a clearly
unconstitutional end, the lieutenant governor correctly declined
to certify it. We therefore affirm the judgment of the superior
court.
II. FACTS AND PROCEEDINGS
Kohlhaas sued the state and the lieutenant governor for
refusing to certify a ballot initiative calling for the State of
Alaskas secession from the United States. Kohlhaas submitted the
initiative to the Office of the Lieutenant Governor in April
2003, accompanied by at least one hundred qualifying signatures
as required by Alaska law. The text of the initiative follows:
INITIATIVE PETITION:
AN INITIATIVE REQUIRING THE STATE OF ALASKA
TO VOTE ON OBTAINING ALASKAN INDEPENDENCE, IF
LEGALLY POSSIBLE, OR TO SEEK CHANGES IN
EXISTING LAW AND CONSTITUTIONAL PROVISIONS TO
AUTHORIZE, AND THEN OBTAIN, INDEPENDENCE.
Be it enacted by the people of the State of
Alaska:
(1) At the next regular general election, the
following question shall be presented to the
voters of the State of Alaska for approval or
rejection:
Shall the State of Alaska obtain independence
from the United States of America, and become
an independent nation, if such independence
is legally possible, and if such independence
is not legally possible under present law,
shall the State of Alaska seek changes in
existing law and Constitutional provisions to
authorize such independence, and then obtain
independence?
(2) If this question is not answered
affirmatively, then this question shall be
placed before the voters of Alaska every ten
years in the future.
(3) The provisions of this Act are
independent and severable, and if any
provision of this Act, or the applicability
of any provision to any person or
circumstance, shall be held to be invalid by
a court of competent jurisdiction, the
remainder of this Act shall not be affected
and shall be given effect to the fullest
extent practicable.
The Department of Law reviewed the petition application
for compliance with AS 15.45.0301 and AS 15.45.040.2 It advised
the lieutenant governor that the initiative does not comply with
the constitutional and statutory provisions governing the use of
the initiative. In its recommendation to the lieutenant
governor, the Department of Law indicated that Kohlhaass
initiative, known as 03INDP, fails because [t]he initiative may
not be used to propose amendments to the Alaska State
Constitution and the law is clear that a state may not secede
from the union. Based on this recommendation, Lieutenant
Governor Loren Leman declined to certify the initiative petition
for circulation.3
Kohlhaas appealed to the superior court. The state
moved for summary judgment. In his cross-motion and opposition
to the states motion for summary judgment, Kohlhaas argued that
the lieutenant governor must certify the initiative for
circulation, since initiatives that are not clearly
unconstitutional may be judicially reviewed only after enactment.
Superior Court Judge Sen Tan granted the states motion and denied
Kohlhaass, ruling that secession is clearly illegal. The
superior court denied Kohlhaass motion for reconsideration.
Kohlhaas appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.4 When
the superior court acts as an intermediate court of appeals, we
independently review the decision of the administrative agency or
actor.5 The resolution of this case requires statutory and
constitutional interpretation, to which we apply our independent
judgment, adopting the rule of law that is most persuasive in
light of precedent, reason, and policy.6 Additionally, although
we liberally construe constitutional and statutory provisions
that apply to the initiative process, we also have a duty to
carefully consider the initiatives subject matter, given the
constitutional limits on the peoples right of direct legislation.7
IV. DISCUSSION
A. The State May Refuse To Certify an Initiative That
Proposes Clearly Unconstitutional Ends.
Article XI, section 1 of the Alaska Constitution
guarantees the right to enact legislation by initiative: The
people may propose and enact laws by the initiative, and approve
or reject acts of the legislature by the referendum. This right
does not extend to certain subjects. Under article XI, section
7, 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. A further limitation on subject matter is found in
article XII, section 11: 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.8 The phrase unless clearly inapplicable was included
in the Alaska Constitution so that the initiative would not
replace the legislature where the legislatures power serves as a
check on other branches of government, such as legislative power
to define courts jurisdiction or override judicial rules.9
Finally, article XII, section 11 also indicates that the power of
the people to enact laws extends no further than the power the
legislature would have to enact a similar law.10 These
constitutional provisions are codified in the Alaska Statutes.11
As a general rule, we refrain from giving pre-enactment
opinions on the constitutionality of statutes, whether proposed
by the legislature or by the people through their initiative
power, since an opinion on a law not yet enacted is necessarily
advisory.12 However, we have enunciated two grounds on which a
petition may be rejected before circulation, from which rejection
the sponsors may obtain judicial review.13 First, a petition may
be rejected if it violates the subject matter restrictions that
arise from the constitutional and statutory provisions governing
initiatives, such as article XI, section 7s prohibition on
appropriation through initiative.14
Second, a petition may be rejected if it proposes a
substantive ordinance where controlling authority establishes its
unconstitutionality.15 This is an exception to the rule that
judicial review of an initiatives constitutionality may not be
obtained until after the voters have enacted the initiative. If
the initiatives sponsors bore the burden of demonstrating every
initiatives constitutionality, the voters law-making powers would
be overly constricted. In setting forth this rule in Kodiak
Island Borough v. Mahoney, we found persuasive the following
observation by Superior Court Judge Morgan Christen:
It is not the Clerks duty to reject every
petition that may raise a constitutional
issue, unless the Alaska Supreme Court has
already decided the constitutional issue in a
manner favorable to the proposed initiative.
To do so would effectively be a decision by
the Clerk that a proposal is unconstitutional
merely because no authority exists expressly
declaring it constitutional. If this were
permitted, every initiative raising an issue
of first impression would be defeated before
reaching the voters.[16]
In Mahoney we provided an example of a clearly
unconstitutional initiative: [A] clerk should reject an
initiative that is properly submitted procedurally but that
proposes an ordinance mandating local school segregation based on
race.17 We indicated that a clerks power to declare an initiative
unconstitutional is analogous to the power of an executive agency
to declare a statute unconstitutional. This includes the
authority to abrogate a statute which is clearly unconstitutional
under a United States Supreme Court decision dealing with a
similar law.18
B. Secession Is Clearly Unconstitutional.
Kohlhaas argues that the appropriate time to review the
constitutionality of 03INDP is after its enactment rather than
before its certification, since there is no controlling authority
clearly establishing its unconstitutionality. The crux of his
argument is that neither the Alaska Constitution nor the United
States Constitution contains provisions expressly prohibiting
secession. The state argues that 03INDP is clearly
unconstitutional under Supreme Court decisions addressing
secession. We agree with the state that secession is clearly
unconstitutional.
Shortly after the Civil War, the Supreme Court
considered whether the Confederate Texas legislature had the
power to pass legislation resulting in the sale of bonds that the
federal government had issued to Texas on its admission to the
Union in 1845. The bonds in Texas v. White,19 issued by the
United States before the Civil War, were not payable without the
Texas governors signature. During the war, the Confederate Texas
legislature repealed the signature requirement and sold the
bonds. After the war, the Supreme Court held that the sales were
invalid since the Confederate legislation was void, having been
enacted for the unlawful purpose of funding treason.20 The
nullity of the Confederate legislation is essential to the
holding.21
Kohlhaas maintains that Texas v. White contains highly
suspect reasoning because it fails to discuss the Ninth and
Tenth Amendments. He argues that because the Constitution is
otherwise silent on secession, secession is one of the rights
reserved by those amendments. The decision quotes the Tenth
Amendment almost exactly and discusses at great length the rights
of the states and the people within the Union:
Under the Constitution, though the powers of
the States were much restricted, still, all
powers not delegated to the United States,
nor prohibited to the States, are reserved to
the States respectively, or to the people. .
. . [T]he people of each State compose a
State, having its own government, and endowed
with all the functions essential to separate
and independent existence[;] . . . without
the States in union, there could be no such
political body as the United States. Not
only, therefore, can there be no loss of
separate and independent autonomy to the
States, through their union under the
Constitution, but it may be not unreasonably
said that the preservation of the States, and
the maintenance of their governments, are as
much within the design and care of the
Constitution as the preservation of the Union
and the maintenance of the National
government. The Constitution, in all its
provisions, looks to an indestructible Union,
composed of indestructible States. When,
therefore, Texas became one of the United
States, she entered into an indissoluble
relation. All the obligations of perpetual
union, and all the guaranties of republican
government in the Union, attached at once to
the State. The act which consummated her
admission into the Union was something more
than a compact; it was the incorporation of a
new member into the political body. And it
was final. The union between Texas and the
other States was as complete, as perpetual,
and as indissoluble as the union between the
original States. There was no place for
reconsideration, or revocation, except
through revolution, or through consent of the
States.[22]
Furthermore, the Supreme Court has interpreted the Tenth
Amendment in a manner contrary to the interpretation Kohlhaas
urges. In considering whether states could impose term limits on
their federal legislators, the Court held that the Amendment
could only reserve that which existed before.23 Thus The states
can exercise no powers whatsoever, which exclusively spring out
of the existence of the national government . . . . No state can
say, that it has reserved, what it never possessed. 24 Like
representation in Congress, secession from the Union springs from
joinder to the Union. No state possessed a right to secede
before admission, and so no state would retain such a right under
the Tenth Amendment.
Kohlhaas also suggests that Texas v. White should not
be taken as black letter law since the decision is tainted by the
context, emotions, and political situation immediately following
the Civil War, and has not been cited except as dicta by modern
cases. This argument not only trivializes the impact of the
Civil War on the Nation but also ignores a plenitude of Supreme
Court cases holding as completely null the purported acts of
secession by other Confederate states.25 Unsurprisingly, the
Supreme Court has had little occasion since Reconstruction to
address the legality of secession. In 2004 the Supreme Court
observed that inclusion of the word indivisible in the Pledge of
Allegiance was significant because the question whether a State
could secede from the Union had been intensely debated and was
unresolved prior to the Civil War.26
Even though secession is not explicitly addressed in
the United States or Alaska Constitutions, it is clearly
unconstitutional since opinions of the Supreme Court interpreting
the federal constitution including Texas v. White constitute
controlling authority.27 Kohlhaass attempt to discount the force
of Texas v. White is wholly misplaced. In 1960 Justice
Frankfurter characterized that decision thus:
The readjustment of the relationship between
the States that had remained in the Union and
those that had seceded presented major issues
not only for the political branches of the
Government, the President and the Congress,
but also for this Court. Insofar as the
perplexing and recalcitrant problems of
Reconstruction involved legal solutions, the
evolution of constitutional doctrine was an
indispensable element in the process of
healing the wounds of the sanguinary
conflict. It was in aid of that process that
this Court formulated the doctrine expressed
in the famous sentence in State of Texas v.
White: The Constitution, in all its
provisions, looks to an indestructible Union,
composed of indestructible States.[28]
When the forty-nine-star flag was first raised at Juneau, we
Alaskans committed ourselves to that indestructible Union, for
good or ill, in perpetuity. To suggest otherwise would disparage
the republican character of the National Government.29
C. Because the Initiative Has Not Been Circulated, We
Decline To Consider Whether the Unconstitutional
Portions May Be Severed.
Kohlhaas argues that even if, as we reaffirm today,
secession is unconstitutional the second section of the
initiative, which directs the state to pursue the enablement of
secession, is salvageable. He urges us to apply our decision in
McAlpine v. University of Alaska and thereby sever the
unconstitutional portions of the initiative from the allegedly
constitutional portions.30 But McAlpines severance test is
particularly aimed at situations where the requisite number of
voters have already subscribed to an initiative,31 that is, after
the initiative has been certified but before the election. Since
the initiative here has not been subscribed to by a substantial
portion of the populace, the burden on the initiatives sponsors
to redraft and resubmit the initiative is not too onerous.
V. CONCLUSION
Secession is clearly unconstitutional and therefore an
improper subject for the initiative. Accordingly, the lieutenant
governor correctly declined to certify the petition, and the
superior court correctly affirmed his decision. We therefore
AFFIRM the judgment of the superior court.
_______________________________
1 AS 15.45.030 provides:
The application must include the
(1) proposed bill;
(2) printed name, the signature, the address,
and a numerical identifier of not fewer than
100 qualified voters who will serve as
sponsors; each signature page must include a
statement that the sponsors are qualified
voters who signed the application with the
proposed bill attached; and
(3) designation of an initiative committee
consisting of three of the sponsors who
subscribed to the application and represent
all sponsors and subscribers in matters
relating to the initiative; the designation
must include the name, mailing address, and
signature of each committee member.
2 AS 15.45.040 provides:
The proposed bill shall be in the following
form:
(1) the bill shall be confined to one
subject;
(2) the subject of the bill shall be
expressed in the title;
(3) the enacting clause of the bill shall be:
Be it enacted by the People of the State of
Alaska;
(4) the bill may not include subjects
restricted by AS 15.45.010.
AS 15.45.010 provides:
The law-making powers assigned to the
legislature may be exercised by the people
through the initiative. However, an
initiative may not be proposed to dedicate
revenue, to make or repeal appropriations, to
create courts, to define the jurisdiction of
courts or prescribe their rules, or to enact
local or special legislation.
3 Former AS 15.45.070 provides: The lieutenant governor
shall review the [initiative] application and shall either
certify it or notify the initiative committee of the grounds for
denial. This statute was amended in 2006 to include a sixty-day
deadline. Ch. 38 2, SLA 2006. AS 15.45.080 provides: The
lieutenant governor shall deny certification upon determining in
writing that (1) the proposed bill to be initiated is not in the
required form; (2) the application is not substantially in the
required form; or (3) there is an insufficient number of
qualified sponsors.
4 Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 991 (Alaska 2004).
5 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946
(Alaska 2006).
6 Alaska Action Ctr., 84 P.3d at 991.
7 Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).
8 (Emphasis added.) To test whether the initiative is
clearly inapplicable, one must ask whether even 55 idiots would
agree that it was inapplicable. Brooks, 971 P.2d at 1028
(quoting 4 Proceedings of the Alaska Constitutional Convention
2849 (January 21, 1956)).
9 Brooks, 971 P.2d at 1029. See also State v. Trust the
People, 113 P.3d 613, 627-28 (Alaska 2005).
10 See Whitson v. Anchorage, 608 P.2d 759, 761 (Alaska
1980); Municipality of Anchorage v. Frohne, 568 P.2d 3, 8
(Alaska 1977) (making same observation with regard to law-making
capacity of municipality and its residents).
11 See AS 15.45.010 & AS 15.45.040.
12 Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974),
overruled on other grounds by McAlpine v. Univ. of Alaska, 762
P.2d 81, 84 (Alaska 1988).
13 State v. Trust the People, 113 P.3d at 624, 625 n.50.
14 See Staudenmaier v. Municipality of Anchorage, 139 P.3d
1259 (Alaska 2006) (pre-election review appropriate where
initiative would effect appropriation in violation of section 7);
Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d
989, 992 (Alaska 2004) (same).
15 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 900
(Alaska 2003).
16 Id. at 899.
17 Id. at 900 n.22, referring to Brown v. Bd. of Educ. of
Topeka, Kan., 349 U.S. 294 (1955).
18 Mahoney, 71 P.3d at 900.
19 74 U.S. (7 Wall.) 700 (1868), overruled in part by
Morgan v. U.S., 113 U.S. 476 (1885). Morgan limited the
application of Texas v. White to cases where the purchaser could
be charged with notice of the defective title.
20 Id. at 733-34.
21 Id.
22 Id. at 725. Although Texas v. White does not refer to
the Ninth Amendment, the case for secession under that amendment
is even weaker than any argument under the Tenth Amendment, as
the Ninth Amendment preserves individual rights rather than state
powers. U.S. Const. amend. IX.
23 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802
(1995).
24 Id. at 802 (quoting 1 Joseph Story, Commentaries on the
Constitution of the United States 627 (3d ed. 1858)).
25 See, e.g., White v. Cannon, 73 U.S. (6 Wall.) 443, 450
(1867) (Louisiana ordinance of secession was an absolute
nullity); Taylor v. Thomas, 89 U.S. (22 Wall.) 479, 491 (1874)
(issuance of treasury notes following Mississippis ordinance of
secession void); White v. Hart, 80 U.S. (13 Wall.) 646, 651
(1871) (Georgia never out of pale of Union); Daniels v. Tearney,
102 U.S. 415, 418 (1880) (That the ordinance of secession was
void is a proposition we need not discuss. The affirmative has
been settled by the arbitrament of arms and the repeated
adjudications of this court.).
26 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6
n.1 (2004).
27 The Supremacy Clause provides: This Constitution, and
the laws of the United States which shall be made in pursuance
thereof . . . shall be the supreme law of the land; and the
judges in every state shall be bound thereby, anything in the
Constitution or laws of any state to the contrary
notwithstanding. U.S. Const. art. VI, cl. 2. See also Dickerson
v. United States, 530 U.S. 428, 437 (2000) (constitutional
decisions of Supreme Court may only be superseded by
constitutional amendment).
28 United States v. Louisiana, 363 U.S.121, 131-32 (1960)
(Frankfurter, J., concurring).
29 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838
(1995) (Kennedy, J., concurring).
30 McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988).
31 Id. at 94.
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