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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaskans for Efficient Government, Inc. v. State, Loren Leman, Lieutenant Governor (02/23/2007) sp-6103
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
| ALASKANS FOR EFFICIENT | ) |
| GOVERNMENT, INC., an Alaskan | ) Supreme Court No. S- 11916 |
| non-profit corporation, and KAREN | ) |
| BRETZ, | ) Superior Court No. 3AN-03-10863 CI |
| ) | |
| Appellants, | ) |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, LOREN | ) No. 6103 - February 23, 2007 |
| LEMAN, LIEUTENANT | ) |
| GOVERNOR, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon L.
Gleason, Judge.
Appearances: Kenneth P. Jacobus, P.C.,
Anchorage, for Appellants. Brenda B. Page,
Assistant Attorney General, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Alaskans for Efficient Government, an Alaskan nonprofit
corporation, submitted Initiative Petition 03TMLT for
certification by the lieutenant governor. The initiative
included a section requiring a supermajority vote for the
legislature to pass tax-related bills. The lieutenant governor
declined to certify the proposed initiative, ruling that it
failed to comply with constitutional provisions governing the
initiative process. The question presented in this appeal is
whether the initiative could properly be rejected before being
voted on and enacted. Alaska law usually requires an initiative
to be enacted before its provisions become subject to challenge
but allows a pre-election challenge if the initiative conflicts
with a constitutional provision that limits the initiative
process. Here, we conclude that the initiatives supermajority
requirement conflicts with article II, section 14 of the Alaska
Constitution, which requires bills to be enacted by a majority
vote. Since article XI, section 1 of the Alaska Constitution
does not allow an initiative to amend a constitutional
requirement, we hold that the initiative was properly rejected
for violating constitutional restrictions on the initiative
process.
II. FACTS AND PROCEEDINGS
In 2003 Karen Bretz, an Alaska voter and organizer of a
non-profit corporation called Alaskans for Efficient Government
(AFEG), filed a petition that proposed a ballot initiative
designed to curb new taxes. The initiative proposed: (1) to
require a three-fourths (seventy-five percent) vote by the
legislature (or a majority vote by the electorate) to enact or
increase taxes; (2) to allow municipalities to use initiatives
for limiting local taxes; and (3) to prohibit taxes on real
estate transfers. After consulting with the Department of Law,
the lieutenant governor rejected the petition, notifying Bretz
that the department had determined that the proposal does not
comply with the constitutional and statutory provisions governing
the use of the initiative.
Bretz and AFEG1 appealed to the superior court,
claiming that the proposed initiative dealt with a proper subject
and should have been certified. The parties filed cross-motions
for summary judgment; their dispute centered on the validity of
the proposed initiatives first section its supermajority voting
requirement:
Section 1. Limitation on State
Taxes. No new state taxes may be imposed,
nor may existing rates on existing taxes be
increased, except as follows:
(1) Upon the affirmative vote of 75% of
the members of each house of the Alaska
Legislature,
(2) Upon the affirmative vote of a
majority of those voters of the State of
Alaska voting on this question at a regular
or special election, or
(3) If necessary to comply with the
terms of state bonded indebtedness existing
as of the effective date of this Act.[2]
The state maintained that the proposed initiatives call
for a supermajority vote would violate the Alaska Constitution,
which authorizes the legislature to enact most laws by a simple
majority vote. Contending that approval of the supermajority
requirement would effectively amend the constitution a change
that cannot be made by the initiative process the state reasoned
that AFEGs initiative was properly rejected. AFEG in turn
defended the initiative, insisting that it merely proposed to
enact a law, not a constitutional amendment. Because the
proposed initiative was not clearly unconstitutional, AFEG
argued, it could only be challenged after being placed on the
ballot and approved by the voters.
The superior court granted summary judgment to the
state. In the courts view, article II, section 14 of the Alaska
Constitution, which allows the legislature to enact bills by
majority vote, could only be changed by a constitutional
amendment. Since an initiative cannot amend the constitution,
the court concluded, AFEGs initiative could not properly be used
to enact a supermajority voting requirement.
AFEG appeals.
III. STANDARD OF REVIEW
We review an award of summary judgment independently
and will affirm if the evidence, when viewed in the light most
favorable to the non-moving party, fails to disclose a genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.3 We likewise review constitutional
questions independently and will adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.4
IV. DISCUSSION
A. Pre-Election Review of Supermajority Requirement
We have long recognized that when initiative petitions
meet formal requirements for filing, the laws they propose to
adopt are ordinarily not subject to immediate challenge: The
general rule is that a court should not determine the
constitutionality of an initiative unless and until it is
enacted.5 The rule against pre-election review is a prudential
one, steeped in traditional policies recognizing the need to
avoid unnecessary litigation, to uphold the peoples right to
initiate laws directly, and to check the power of individual
officials to keep the electorates voice from being heard.6 But
this bar against pre-election review has never been absolute:
There are two exceptions to this [general
rule]. 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.[7]
AFEG argues that its proposed initiative should have
avoided review and been placed on the ballot because it is not
clearly unconstitutional8 as required under the second exception:
The case at bench involves a claim that the proposed initiative
is in conflict with the Constitution of Alaska and, accordingly,
is an attempt to amend it. Judicial review of Constitutional
challenges, however, should not be conducted until after the
passage of the initiative by the voters, if in fact it is passed.
But the state responds that the initiative was properly
rejected under the first exception not because it might be
unconstitutional if enacted but rather because enacting an
initiative on a subject that can only be changed by
constitutional amendment fails to comply with constitutional
provisions regulating the initiative process.
The states argument starts from the premise that the
Alaska Constitution does not permit constitutional amendments to
be enacted by initiative. As this court recognized soon after
statehood in Starr v. Hagglund,
[Article XIII of the Alaska Constitution]
provides two methods of amending the
constitution: (1) by a constitutional
convention, followed by ratification of the
proposed amendment by the people, and (2) by
a proposal that has obtained a two-thirds
vote of each house of the legislature, and is
adopted by the people by majority vote at a
statewide election.[9]
As we further recognized in Starr, article XIII necessarily
limits the scope of the initiative process: The initiative may
be used only to enact laws, and not for the purpose of
constitutional amendment.10
Building on the premise that article XIII forbids the
initiative from being used to amend the constitution, the states
argument turns to article II, section 14 of the Alaska
Constitution. This provision authorizes the legislature to
establish procedures for enacting laws and specifies that
enacting a law generally requires a majority vote of both houses:
The legislature shall establish the procedure
for enactment of bills into law. No bill may
become law unless it has passed three
readings in each house on three separate
days, except that any bill may be advanced
from second to third reading on the same day
by concurrence of three-fourths of the house
considering it. No bill may become law
without an affirmative vote of a majority of
the membership of each house. The yeas and
nays on final passage shall be entered in the
journal.[11]
In the states view, the majority-vote clause of article
II, section 14, restricts the use of an initiative by
establishing that, except when otherwise provided in the
constitution, a majority vote of both houses is the exclusive
method for enacting a bill. Under this view, since a majority
vote is a constitutional requirement and, as such, under article
XIII, is not subject to change by initiative, a proposal to adopt
a supermajority vote by initiative is barred because it conflicts
with constitutional provisions that place the topic off limits to
the initiative process. As the state puts it:
The Alaska Constitution requires only a
majority vote of each house of the
legislature to enact legislation. The
measure proposed by the AFEG initiative,
however, would establish new, additional
requirements for enactment of taxation
legislation. Specifically, the proposed
measure would require a 75 percent majority
vote of both houses of the Alaska
legislature, or approval of a majority of the
electorate, to enact legislation that would
impose or increase state taxes. Such a
fundamental change to the constitutional
requirements for enactment of legislation
constitutes an amendment to the Alaska
Constitution. Under the Alaskan
constitutional restrictions on initiatives,
the initiative process cannot be used to
amend the constitution. Accordingly, the
lieutenant governor properly denied
certification of the application.
Although AFEG concedes that the initiative process may
not be used to amend the constitution, it disputes the states
reading of article II, section 14s majority-vote clause. AFEG
reads article II, section 14 as simply establishing the minimum
baseline for enacting a law. In AFEGs view, this baseline does
not preclude a more stringent law requiring a supermajority vote.
But AFEGs interpretation of article II, section 14s
majority-vote requirement is unpersuasive for several reasons.
Initially, we note that other states that have adopted
supermajority or voter-approval requirements for enacting tax-
related bills have almost always treated these requirements as
constitutional matters. Indeed, of the states that have such
requirements, it appears that all but one have implemented them
as constitutional provisions.12 Moreover, the only state to adopt
a supermajority requirement by ordinary legislation, Washington,
later suspended it through a bill enacted by a majority vote,
leaving Washington law where it started until its next
legislative session.13 The subject has also been viewed as a
constitutional one in the federal arena. In 1995, when the House
of Representatives passed a rule requiring supermajority votes
for certain tax-related legislation,14 members of the House
immediately filed a constitutional challenge.15 Although the
challenge stalled for lack of standing16 and ultimately became
moot after the House determined that the rule could be waived by
a majority,17 Chief Judge Edwards of the D.C. Circuit expressed
the view that the supermajority rule clearly violated the United
States Constitution by fundamentally alter[ing] the balance of
power established by the Framers.18
Thus, to the extent that other jurisdictions have
addressed the issue, the clear consensus appears to view
supermajority voting requirements as implicating the kind of
basic subject matter usually addressed by constitutional
provision rather than legislation.
This view coincides with the Alaska Constitutions text
and its traditional application by the Alaska legislature. As
already mentioned, article II, section 14, of the Alaska
Constitution directs the legislature to establish the procedure
for enactment of bills into law; section 14 then goes on to
specify that [n]o bill may become law without an affirmative vote
of a majority of the membership of each house. By giving the
legislature the duty to adopt procedural rules for enacting law,
while spelling out the precise vote required to enact bills as
law, section 14 unmistakably signals that Alaskas constitutional
framers intended the majority-voting provision to be a
substantive requirement instead of a mere procedural rule.
AFEG insists that the negative phrasing of section 14s
majority-vote clause [n]o bill may become law without an
affirmative vote of a majority should be read as signaling the
framers intent to set a floor, not a ceiling: to require at least
a majority vote while allowing laws imposing stricter
requirements. If the framers had intended to require no more
than a majority vote, AFEG contends, they would have drafted the
clause to read: Any bill may be enacted by an affirmative vote of
the majority of the membership of each house.
But as the state correctly observes, other courts
interpreting constitutional language have wisely refrained from
attributing any automatic significance to the distinction between
negative and positive phrasing.19 Here, for example, had the
framers said any bill rather than no bill, AFEGs logic would just
as readily compel the anomalous conclusion that section 14 was
meant to set a ceiling but not a floor that a majority vote
would be the maximum needed to enact any bill, but the
legislature would remain free to specify a sub-majority vote as
sufficient to enact laws dealing with specified subjects, as it
saw fit.20
More important, the Alaska Constitution includes other
provisions that undercut AFEGs contention that the framers
intended section 14s majority-vote clause as a minimal standard.
Alaskas constitutional framers, well aware of their ability to
require more stringent voting requirements, included such
requirements in the Alaska Constitution for laws dealing with
various subjects. Examples can be found in the three-readings
clause of article II, section 14;21 the veto-override clause of
article II, section 16;22 the effective-date provisions of
article II, section 18;23 the impeachment standard set out in
article II, section 20;24 and the provisions governing budget
reserve fund appropriations set out in article IX, section 17(c).25
In our view, the superior court correctly recognized these
examples as convincing evidence of the framers intent to include
provisions in the Alaska Constitution describing all instances in
which supermajority votes could be required to enact a bill.
To support its position that section 14s majority-vote
clause just sets a minimal level for enacting bills into law,
AFEG further cites numerous instances in which the legislature
has adopted rules establishing voting requirements, including
some rules requiring supermajority votes. Yet all of the cited
rules either deal with non-substantive matters relating to
internal legislative procedures or simply mirror substantive
voting requirements expressly included in the Alaska
Constitution.26 AFEG identifies no rule that alters any provision
of the constitution specifying the votes for enacting a bill; nor
does AFEG cite any rule establishing a supermajority requirement
for enacting any bill not already covered by supermajority
requirements set out in the constitutions text. And AFEG points
to no authority suggesting that the legislature, the Department
of Law, or this court has ever interpreted the constitution to
allow a rule of this sort.
Apparently, then, during the half-century since Alaska
voters ratified our constitution, the majority-vote clause of
article II, section 14 has uniformly been understood and applied
as a substantive provision that sets both a floor and a ceiling:
a requirement that bills be enacted by majority vote in all
situations not covered by other requirements set out in the
constitution.
So construed, the majority-vote requirement operates as
a constitutionally based subject-matter restriction, prohibiting
the enactment of any law that proposes to modify the majority-
vote standard. Because the legislature itself cannot change this
constitutional standard by enacting a law, and an initiative
cannot enact laws that the legislature has no authority to enact,27
it follows that article II, section 14 prevents an initiative
from addressing the subject of the number of votes needed to
enact a bill into law. Accordingly, we conclude that the
lieutenant governor correctly reviewed the proposed initiative
before it appeared on the ballot and properly rejected it at that
stage for failing to comply with constitutional provisions
regulating initiatives.28
B. Severance
AFEG separately argues that the proposed initiatives
severance clause authorizes us to remove the offending provisions
from the measure and allow the rest to go forward. But the
lieutenant governor rejected the entire initiative, not just its
supermajority vote provision. In appealing this ruling to the
superior court, AFEG failed to argue the severance issue. And
its cursory briefing of the point on appeal to this court fails
to provide a meaningful basis for appellate review. We have
often emphasized that [w]e will not ordinarily consider issues
unless they were raised in the trial court.29 Given AFEGs
untimely and conclusory argument on the severance issue, we hold
that AFEG has failed to preserve the point.
V. CONCLUSION
For these reasons, we AFFIRM the superior courts
judgment upholding the lieutenant governors rejection of
Initiative Petition 03TMLT.
APPENDIX
AN INITIATIVE REQUIRING 75% LEGISLATIVE MAJORITY OR VOTER
APPROVAL TO IMPOSE NEW TAXES OR INCREASE EXISTING TAXES,
PROHIBITING REAL ESTATE TRANSFER TAXES, AND PROVIDING
FOR CERTAIN LOCAL OPTIONS
BE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA:
Section 1. Limitation on State Taxes. No new state
taxes may be imposed, nor may existing rates on existing taxes be
increased, except as follows:
(1) Upon the affirmative vote of 75% of the members of each
house of the Alaska Legislature,
(2) Upon the affirmative vote of a majority of those voters
of the State of Alaska voting on this question at a regular or
special election, or
(3) If necessary to comply with the terms of state bonded
indebtedness existing as of the effective date of this Act.
Section 2. Local Option. Any home rule or general law
municipality, including cities, boroughs and unified
municipalities, may enact or repeal ordinances through action by
the governing body or through the initiative or referendum, which
limit the imposition of new taxes or the increase of rates on
existing taxes, repeal or reduce existing taxes, or determine
maximum rates or amounts of any local tax.
Section 3. Real Estate Transfer Taxes Prohibited.
Neither the State nor any municipality may impose any transfer
taxes or tax rates on transfers of real property by sale or
lease. This section does not affect the right of the State or a
municipality to impose taxes or royalties on the harvesting,
extraction, or use of oil or gas, minerals, timber, and other
natural resources which may be deemed to be part of the land.
Section 4. Interpretation. This Act shall be
interpreted in the manner which reasonably restricts most the
growth of government. The term taxes, for the purposes of this
act, shall include all taxes, permit fees, license fees and user
fees.
Section 5. Supersedes Conflicting Statutes, Ordinances,
and Regulations. This initiative supersedes all conflicting
provisions of State statutes, local ordinances and State and
local regulations and procedure, which provisions shall be of no
further force or effect.
Section 6. Applicability. The provisions of this Act
apply to all new taxes and all rate increases on existing taxes
which are levied or imposed on or after January 1, 2004. If this
date may not be used for legal reasons as determined by a court
of competent jurisdiction, then the provisions of this Act apply
to all new taxes and all rate increases on existing taxes which
are levied or imposed on or after the effective date of this Act.
Section 7. Severability. 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.
_______________________________
1 For convenience we will refer to Bretz and AFEG
collectively as AFEG.
2 Since the issues on appeal do not require us to
consider the initiative petitions remaining sections, we do not
set them out as part of this opinion. For ease of reference,
however, the initiatives full text is included as an appendix to
the opinion.
3 Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998)
(quoting Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085, 1086
(Alaska 1989)).
4 Sonneman, 969 P.2d at 636 (citing Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).
5 State v. Trust the People, 113 P.3d 613, 614 n.1
(Alaska 2005).
6 Id. at 628-29.
7 Id. at 614 n.1.
8 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 900
(Alaska 2003).
9 Starr v. Hagglund, 374 P.2d 316, 317 n.2 (Alaska 1962).
10 Id.; see also State v. Lewis, 559 P.2d 630, 639 (Alaska
1977) (The Alaska Constitution may not be amended by popular vote
alone, without prior action by either the legislature or a
constitutional convention.). Notably, article XI, section 1
empowers voters to enact laws by the initiative (emphasis added);
no similar provision extends the initiative power to include
constitutional amendments.
11 Alaska Const. art. II, 14 (emphasis added).
12 See Ariz. Const. art. IX, 22; Ark. Const. art. V, 38;
Cal. Const. art. XIIIA; Colo. Const. art. X, 20; Del. Const.
art. VIII, 11; Fla. Const. art. VII, 5; Ky. Const. 36; La.
Const. art. VII, 2; Mich. Const. art. IX, 25; Miss. Const. art.
IV, 70; Okla. Const. art. V, 33; Or. Const. art. IV, 25; S.D.
Const. art. XI, 13; see also Nev. Const. art. 4, 18
(subsequently ruled invalid in part on state constitutional
grounds not relevant here, see Guinn v. Legislature of State of
Nevada, 71 P.3d 1269, 1274-76 (Nev. 2003), decision clarified on
denial of rehg by 76 P.3d 22 (Nev. 2003), cert. denied sub nom.,
Angle v. Guinn, 541 U.S. 957 (2004)).
13 See Wash. Rev. Code 43.135.035.
14 See H.R. Res. 6, 104th Cong. (1995), 141 Cong. Rec.
462, 463 (1995) (adding subsections (c) and (d) to House Rule
XXI(5)).
15 Skaggs v. Carle, 110 F.3d 831, 833 (D.C. Cir. 1997).
16 Id. at 837.
17 141 Cong. Rec. 29463, 29476-77 (1995) (Speaker Pro
Tempore rules that waiving supermajority rule only requires a
majority).
18 Skaggs, 110 F.3d at 847 (Edwards, C.J., dissenting)
(expressing view that House Rule XXXI(5)(c) violated the
presentment clause of the Constitution, U.S. Const. art. I, 7,
cl. 2).
19 See, e.g., Powell v. McCormack, 395 U.S. 486, 538-39
(1969) (recognizing that the U.S. Constitutions qualifications
clause provides an exclusive list of qualifications for
legislators, notwithstanding its negative phrasing); Gerberding
v. Munro, 949 P.2d 1366, 1372-73 (Wash. 1998) (Washington Supreme
Court found that negative phrasing could still mean exclusivity
of a provision and did not just mean a minimum); Cathcart v.
Meyer, 88 P.3d 1050, 1070-71 (Wyo. 2004) (not distinguishing
between positive and negative phrasing, but noting that some
other jurisdictions maintained the distinction); cf. Mississippi
County v. Green, 138 S.W.2d 377, 379 (Ark. 1940) (Why fix
[legislative qualifications, even in negative phrasing] in the
first place if the makers of the constitution did not intend to
fix all the qualifications required, and why fix only a part of
them and leave it up to the legislators to fix other
qualifications?).
20 Moreover, as demonstrated by article II, section 12, it
would be problematic to categorically reject this interpretation
on the assumption that the framers would never have authorized
any form of sub-majority voting requirement. In establishing
various legislative procedures, section 12 provides, [a] majority
of the membership of each house constitutes a quorum to do
business, but a smaller number may adjourn from day to day and
may compel attendance of absent members. (Emphasis added.)
21 Alaska Const. art. II, 14 states, in part, [n]o bill
may become law unless it has passed three readings in each house
on three separate days, except that any bill may be advanced from
second to third reading on the same day by concurrence of
three-fourths of the house considering it.
22 Alaska Const. art. II, 16 states [b]ills to raise
revenue and appropriation bills or items, although vetoed, become
law by affirmative vote of three-fourths of the membership of the
legislature.
23 Alaska Const. art. II, 18 states [l]aws passed by the
legislature become effective ninety days after enactment. The
legislature may, by concurrence of two-thirds of the membership
of each house, provide for another effective date.
24 Alaska Const. art. II, 20 states [a]ll civil officers
of the State are subject to impeachment by the legislature.
Impeachment shall originate in the senate and must be approved by
a two-thirds vote of its members.
25 Alaska Const. art. IX, 17(c) states [a]n appropriation
from the budget reserve fund may be made for any public purpose
upon affirmative vote of three-fourths of the members of each
house of the legislature. We note additionally that article II,
section 19 provides an example of a voter-approval requirement:
The legislature shall pass no local or
special act if a general act can be made
applicable. Whether a general act can be made
applicable shall be subject to judicial
determination. Local acts necessitating
appropriations by a political subdivision may
not become effective unless approved by a
majority of the qualified voters voting
thereon in the subdivision affected.
26 For instance, Legislative Rule 14 incorporates voting
requirements of article II, sections 14, 16, and 18; Legislative
Rule 39 relies on article II, section 14; and Legislative Rule 45
relies on article II, sections 15 and 16.
27 See Starr, 374 P.2d at 317 n.2; Lewis, 559 P.2d at 639;
Alaska Const. art. XI, 1 (empowering voters to enact laws by the
initiative).
28 Kodiak Island Borough, 71 P.3d at 898; see also Trust
the People, 113 P.3d at 628-29; Brooks v. Wright, 971 P.2d 1025,
1027 (Alaska 1999).
29 Brooks v. Brooks, 733 P.2d 1044, 1053 (Alaska 1987);
see also Moore v. State, Dept of Natural Res., 992 P.2d 576, 577
n.5 (Alaska 1999); Jackson v. Nangle, 677 P.2d 242, 251 n.10
(Alaska 1984).
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