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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

Kohlhaas v. State (11/17/2006) sp-6072, 147 P3d 714

     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,


) Supreme Court No. S- 11866
Appellant, )
) Superior Court No.
v. ) 3AN-03-9640 CI
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.

          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
          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:
          Be  it enacted by the people of the State  of
          (1) At the next regular general election, the
          following question shall be presented to  the
          voters of the State of Alaska for approval or
          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
          (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  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.
          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
     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
          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
          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
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.
          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
          (1)   the  bill  shall  be  confined  to  one
          (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
          (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

     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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