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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alasakans for a Common Language, Inc. v. Kritz (11/2/2007) sp-6185

Alasakans for a Common Language, Inc. v. Kritz (11/2/2007) sp-6185, 170 P3d 183

     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 A COMMON )
LANGUAGE, INC., )
) Supreme Court No. S- 10590
Appellant, )
) Superior Court No.
v. ) 3DI-99-12 CI
)
MOSES KRITZ, et al., )
)
Appellees. )
)
ALASKANS FOR A COMMON )
LANGUAGE, INC.,                               )    Superior Court
                                   No.
                              )    3AN-99-4488 CI
               Appellant,               )
                              )
     v.                                                )    O P I
                                   N I O N
                              )
HENRY ALAKAYAK, et al.,                  )    No. 6185 - November
                                   2, 2007
                              )
               Appellees.          )
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Dillingham, Fred Torrisi, Judge.

          Appearances:  Kevin D. Callahan  and  Douglas
          J. Serdahely, Patton Boggs LP, Anchorage, for
          Appellant  Alaskans  for a  Common  Language,
          Inc.    Douglas   Pope,   Pope   &   Katcher,
          Anchorage,  for  Kritz  Appellees.   Eric  D.
          Johnson,   Association  of  Village   Council
          Presidents,  Bethel; Heather  Kendall-Miller,
          Native  American Rights Fund, Anchorage;  and
          William  E. Caldwell, Alaska Civil  Liberties
          Union,  Fairbanks,  for  Alakayak  Appellees.
          Jan Hart DeYoung, Assistant Attorney General,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General,   Juneau,  for  Appellee  State   of
          Alaska.  Peter M. Tiersma, Loyola Law School,
          Los  Angeles,  California and Nikole  Nelson,
          Anchorage,   for  amicus  curiae   Linguistic
          Society of America.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.
          BRYNER, Chief Justice, dissenting.

I.   INTRODUCTION
          Alaskans  for  a Common Language, Inc. appeals  from  a
decision  of  the  superior  court  that  the  Official   English
Initiative,  AS 44.12.300-.390, violates speech rights  protected
by  the federal and Alaska Constitutions.  We hold that a portion
of  the  statutes  principal provision violates  constitutionally
protected   speech.    We   also   hold,   however,   that   this
unconstitutional portion of the statute may be severed  from  the
remainder  of the principal provision and that the remainder,  if
given  a narrowing construction, is constitutional.  We therefore
affirm in part, and reverse in part, the judgment of the superior
court.
II.  FACTS AND PROCEEDINGS
          In  1998 Alaskans for a Common Language, Inc. (ACL), an
Alaskan non-profit corporation, sponsored a ballot initiative  to
adopt English as the states official language and to require  its
sole  use  in all government functions and actions.  The Official
English  Initiative  (OEI or the initiative), entitled  Requiring
Government  to  Use  English,  was described  on  the  ballot  as
follows:
          This  bill requires the state to use  English
          in  all  government  functions  and  actions.
          State  records must be in English.  The state
          means  the  legislature, all state  agencies,
          local  governments, school districts,  public
          corporations   and  the  university.    Those
          entities  may  use non-English languages  for
          international  trade,  emergencies,  teaching
          languages,  court suits, criminal  inquiries,
          for elected officials to talk to constituents
          or to comply with federal law.  Costs of non-
          English  records must be identified.  Persons
          who  speak  only English may  not  be  denied
          state  jobs or services.  The bill  does  not
          affect  private  sector  use  of  non-English
          languages.[1]
          
          The  OEI was approved by the voters on November 3, 1998
and  was  subsequently  codified at AS 44.12.300-.390  to  become
effective March 3, 1999.  Accordingly, this case requires  us  to
interpret a statute enacted pursuant to the peoples power of  the
initiative.2
          Following  passage  of  the  initiative,  two  sets  of
plaintiffs   filed   suit  against  the  state   to   block   its
implementation.  The Kritz plaintiffs consisted of  Moses  Kritz,
Stanley  Active,  and  Frank Logusak, all of  whom  are  lifelong
residents of Togiak.  Kritz and Active are both public officials,
the former proficient in English and Yupik and the latter only in
Yupik.   Logusak  is a citizen who is fluent in  both  languages.
The  Alakayak  plaintiffs are a group of  Alaska  residents  from
various  cities  and  native villages, many of  whom  are  either
bilingual   in  English  and  Yupik,  Inupiaq,  or  Spanish,   or
proficient  only  in  their  native  languages  and   unable   to
communicate in English.  The lead plaintiff, Henry Alakayak, is a
member  of  the  city council for the City of Manokotak  who  has
limited  proficiency in English and performs his job  exclusively
in Yupik.  Both sets of plaintiffs alleged that implementation of
the   OEI  would  adversely  affect  numerous  Alaskans  who  are
themselves   bi-   or  multi-lingual  government   officials   or
employees,   or   citizens  who  rely  on  such  individuals   to
communicate with or participate in local and state government.
          The   cases  were  consolidated  and,  in  March  1999,
Superior  Court Judge Fred Torrisi granted the plaintiffs  motion
for  a  preliminary injunction, enjoining implementation  of  the
initiative pending further order of the superior court or of this
court.   ACL  then  sought to intervene  as  a  defendant.3   The
superior  court denied ACLs motion, explaining that its interests
would  be  adequately represented by the state and that it  could
advance  its  positions as an amicus curiae.4  Noting  that  some
might  question whether the state was committed to defending  the
constitutionality  of  the initiative  in  light  of  unfavorable
sentiments  expressed by the attorney generals office  and  then-
Governor  Tony Knowles,5 we ordered the superior court to  permit
ACL to intervene in the lawsuit.6
          All  parties then moved for summary judgment,  agreeing
that the matter could be resolved without an evidentiary hearing.
In  March  2002 Judge Torrisi granted the plaintiffs motions  for
summary  judgment, finding that the OEI violated the free  speech
clause  of  the  Alaska Constitution because it is impossible  to
restrict the initiatives reach to the speech of government as  an
employer, and because even viewed in this way it is not justified
by  a  legitimate interest.  The court further stated that  [t]he
wide  reach  of the initiative chills the exercise  of  protected
speech, and there is no construction that can cure this problem.
          The  superior  court  rejected the  argument  that  the
initiative was purely symbolic and that it did not prevent anyone
from  speaking languages other than English, concluding that  ACL
failed  to  demonstrate how the initiative  could  be  reasonably
construed  to  permit government employees to routinely  speak  a
          language other than English, except in limited circumstances.
Relying  upon the Ninth Circuits statement that [s]peech  in  any
language  is  still speech and the decision to speak  in  another
language  is  a  decision  involving  speech  alone,7  the  court
concluded  that the OEI is a restriction on speech that  violates
the free speech rights of public officials and employees.
          With  respect to elected officials, the superior  court
found that the OEI limits their ability to freely speak and  thus
violates  article  I, section 5 of the Alaska Constitution.8   As
for non-elected employees and officials, the court explained that
any  restriction  on their free speech rights would  have  to  be
justified  by  a  strong  [s]tate  interest.   While  the   court
recognized   the  validity  of  the  OEIs  goals  of   promoting,
preserving and strengthening the use of English as Alaskas common
language  and  of  reducing  the costs of  conducting  government
business  in  multiple languages, the court found these interests
insufficient  to  justify  the  blanket  prohibition  on   public
employees speaking languages other than English.
          Concluding  that  the initiative  failed  to  meet  the
stringent  standard  required under  Alaska  law  to  justify  an
infringement  upon  the  speech rights of  Alaska  citizens,  the
superior  court  declined to make any findings regarding  whether
the  OEI  was  content-based or to address the  plaintiffs  equal
protection   arguments.   However,  the  court  noted   that   an
overbreadth  analysis would lead to the same  conclusion  because
the  initiative  swept  in  too  much  constitutionally-protected
speech  to  be construed narrowly.  Finally, the court considered
whether   the   initiative  could  be  saved  by   severing   the
unconstitutional provisions and concluded that, while  a  severed
construction might capture the spirit of the measure,  it was not
evident   that  voters  would  prefer  the  measure  as  altered.
Accordingly,  the court declared the Official English  Initiative
void  as  violative  of  article  I,  section  5  of  the  Alaska
Constitution.
          ACL  appealed.  Following oral argument, we  asked  the
parties   to  submit  supplemental  briefing  on  the  issue   of
severability.   The  state had declined  to  participate  in  the
original  appeal but, at our request, submitted briefing  on  the
issue of severability.
III.                          STANDARD OF REVIEW
          We  apply  our  independent judgment  to  questions  of
constitutional  law  and review de novo the construction  of  the
Alaska and federal Constitutions.9  We also apply our independent
judgment to questions of statutory interpretation and adopt[] the
rule of law that is most persuasive in light of precedent, reason
and policy.10
          We  review a grant of summary judgment de novo and will
affirm  the judgment if there are no contested issues of material
fact  and if the moving party is entitled to judgment as a matter
of  law.11   In reviewing the superior courts decision  to  grant
summary  judgment, we are not bound by the reasoning  articulated
by  the  lower  court, and . . . can affirm a  grant  of  summary
judgment  on alternative grounds, including grounds not  advanced
by  the lower court or the parties.12  We may consider any  issue
          contained in the record, even if not considered by the superior
court, in defense of the judgment.13
IV.  DISCUSSION
          There are now English-only laws in twenty-four states.14
The  content of these laws varies significantly.  Some are simply
policy statements that English is the states official language.15
Others  designate English as  the language of all official public
documents,  records  or  meetings.16   Still  others  state  that
government   shall   not  be  required  to   provide   documents,
information,  or  literature  in  other  languages,  but   permit
government employees to communicate in other languages for a wide
range  of  reasons.17   In stark contrast stand  an  English-only
amendment  to the Arizona constitution,18 a proposed English-only
statute in Oklahoma,19 and the OEI.
          These  three  English-only laws share  the  same  basic
structure:   a declaration that English is the official  language
of  the  state, a requirement that only English be  used  by  the
state  and  its political subdivisions, and enumerated exceptions
permitting the use of other languages.20  In its decision striking
down  the Arizona amendment, the Arizona Supreme Court noted that
the  law had been characterized as the nations most restrictively
worded official-English law to date.21  That court held that  the
proposed amendment was a pure speech ban that infringed upon  the
rights  of  elected officials and public employees to communicate
with   the   public,  the  rights  of  non-English  speakers   to
participate  in political affairs, and the Fourteenth  Amendments
guarantee  of equal protection.22  The Ninth Circuit had  earlier
reached  a  similar  conclusion  when  it  too  struck  down  the
amendment,  stating  that  the  amendments  ban  on  the  use  of
languages  other  than English by persons in  government  service
could  hardly be more inclusive because the amendment applied  to
the  legislative, judicial, and executive branches of both  state
and   local  government  and  to  all  government  officials  and
employees  during the performance of government business.23   The
Oklahoma  Supreme Court likewise struck down that states proposed
English-only  initiative on state constitutional grounds.24   The
court  found that the initiatives broad scope sought  to  prevent
citizens   of   limited  English  proficiency  from   effectively
communicating with government officials and from receiving,  when
available, vital information about government.25
          Alakayak and Kritz ask that we strike down the OEI on a
constitutional  basis similar to that used  by  the  Arizona  and
Oklahoma  courts.   To  determine whether  the  initiative  is  a
constitutional  regulation of speech we must  determine  (1)  the
scope  of  the  law, (2) whether it burdens any constitutionally-
protected  rights,  and,  if so, (3) whether  it  withstands  the
appropriate  level of judicial scrutiny given the nature  of  the
rights it implicates.
          Determining  the  scope  of  the  OEI  requires  us  to
construe its meaning.  In Part IV.A., we conclude that the  first
sentence  of AS 44.12.320 broadly requires the use of English  by
all   government  officials  and  employees  in  all  levels   of
government.   Next, determining whether the statute  burdens  any
constitutionally-protected rights requires  us  to  evaluate  its
          impact on the rights of private citizens, elected government
officials, and government employees.  In Part IV.B., we  conclude
that  the  same  sentence  impacts the constitutionally-protected
speech  of each of these groups.  Third, determining whether  the
OEI  withstands the appropriate level of scrutiny is  a  two-step
process.   In  Part  IV.C., we first identify  and  evaluate  the
government interest in prescribing the use of English; second, we
determine how closely the means chosen by the OEI fit the ends it
serves.   We  conclude  that while the OEI  serves  a  compelling
governmental  interest, the means it uses  are  not  sufficiently
narrowly tailored to satisfy the federal or Alaska Constitutions.
          In Part IV.D., we consider whether any unconstitutional
provisions can be severed to preserve a portion of the  law.   We
conclude  that the first sentence of AS 44.12.320 can be severed,
allowing  the second sentence of that section to stand.  Finally,
in Part IV.E. we set out the general principles for analyzing the
other sections of the law.
     A.   The  OEI  Requires the Use of English in All Government
          Functions and Actions.
          
          1.   The language of the statute

          The parties vigorously dispute the scope and effect  of
the law.  We begin our analysis with its text:
          Sec.  44.12.300.  Findings and purpose.   The
          people  of  the  State of  Alaska  find  that
          English  is  the common unifying language  of
          the State of Alaska and the United States  of
          America, and declare a compelling interest in
          promoting,  preserving and strengthening  its
          use.
          
          Sec.  44.12.310.   Official  language.    The
          English language is the official language  of
          the State of Alaska.
          
          Sec. 44.12.320.  Scope.  The English language
          is  the  language to be used  by  all  public
          agencies  in  all  government  functions  and
          actions.  The English language shall be  used
          in  the  preparation of all  official  public
          documents   and   records,   including    all
          documents  officially compiled, published  or
          recorded by the government.
          
          Sec. 44.12.330.  Applicability.  AS 44.12.300-
          44.12.390   apply  to  the  legislative   and
          executive branches of the State of Alaska and
          all  political  subdivisions,  including  all
          departments,    agencies,    divisions    and
          instrumentalities   of   the    State,    the
          University  of Alaska, all public authorities
          and  corporations, all local governments  and
          departments,    agencies,   divisions,    and
          instrumentalities of local  governments,  and
          all government officers and employees.
          
          Sec.   44.12.340.    Exceptions.    (a)   The
          government,  as defined in AS 44.12.330,  may
          use   a  language  other  than  English  when
          necessary for the following purposes:
          
               (1)  to  communicate health  and  safety
          information or when an emergency requires the
          use of a language other than English;
               (2)   to   teach  another  language   to
          students proficient in English;
               (3)  to  teach  English to  students  of
          limited English proficiency;
               (4)  to promote international relations,
          trade, commerce, tourism or sporting events;
               (5)  to  protect the constitutional  and
          legal rights of criminal defendants;
               (6)  to  serve the needs of the judicial
          system   in  civil  and  criminal  cases   in
          compliance with court rules and orders;
               (7) to investigate criminal activity and
          protect the rights of crime victims;
               (8)  to  the extent necessary to  comply
          with   federal  law,  including  the   Native
          American Languages Act;
               (9)   to  attend  or  observe  religious
          ceremonies;
               (10)  to  use non-English terms of  art,
          names,  phrases, or expressions  included  as
          part  of communications otherwise in English;
          and
               (11)    to   communicate   orally   with
          constituents by elected public officials  and
          their staffs, if the public official or staff
          member  is  already proficient in a  language
          other than English.
          
          (b)  An  individual may provide testimony  or
          make  a  statement  to the  government  in  a
          language   other   than   English,   if   the
          individual  is not an officer or employee  of
          the  government,  and  if  the  testimony  or
          statement  is  translated  into  English  and
          included in the records of the government.
          
          Sec. 44.12.350.  Public accountability.   All
          costs    related    to    the    preparation,
          translation,   printing,  or   recording   of
          documents,   records,  brochures,  pamphlets,
          flyers, or other material in languages  other
          than  English shall be defined as a  separate
          line item in the budget of every governmental
          agency, department, or office.
          
          Sec. 44.12.360.  Non-denial of employment  or
          services.  (a) No governmental  entity  shall
          require  knowledge of a language  other  than
          English  as a condition of employment  unless
          the  requirements of the position fall within
          one   of  the  exceptions  provided   in   AS
          44.12.340,  and facility in another  language
          is  a bona fide job qualification required to
          fulfill a function included within one of the
          exceptions.
          
          (b)   No   person  may  be  denied  services,
          assistance, benefits, or facilities, directly
          or  indirectly  provided by  the  government,
          because  that  person  communicates  only  in
          English.
          
          Sec. 44.12.370.  Private sector excluded.  AS
          44.12.300-  44.12.390 shall not be  construed
          in  any way that infringes upon the rights of
          persons  to use languages other than  English
          in  activities or functions conducted  solely
          in the private sector, and the government may
          not  restrict the use of language other  than
          English   in   such  private  activities   or
          functions.
          
          Sec.  44.12.380.   Private  cause  of  action
          authorized.   Any  person  may   bring   suit
          against  any governmental entity  to  enforce
          the provisions of AS 44.12.300-44.12.390.
          
          Sec.    44.12.390.     Severability.      The
          provisions  of  AS  44.12.300-44.12.390   are
          independent  and  severable,   and   if   any
          provision of AS 44.12.300-44.12.390,  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 AS 44.12.300-44.12.390 shall not
          be  affected and shall be given effect to the
          fullest extent practicable.
          
          2.   The Meaning of the Statute
          ACL  argues  that  the superior court misconstrued  the
purpose of the OEI, and that the law would have little impact  on
government because it was never intended as a categorical ban  on
communication in other languages.  ACL claims that any  potential
constitutional problems can be avoided if we interpret the OEI as
requiring the use of English only in the formal and official acts
of government rather than as a categorical ban on speech in other
languages  in  all  aspects of government.  The  superior  court,
agreeing   with  Kritz  and  Alakayak,  rejected  ACLs   proposed
interpretation  as  unsupported by the  text  of  the  initiative
itself or by the other ballot materials provided to voters on  or
before November 3, 1998.



               a.   Principles of statutory construction
          Our precedent clearly establishes that courts should if
possible  construe  statutes  so  as  to  avoid  the  danger   of
unconstitutionality.26   To  this  end,  [a]  party   raising   a
constitutional  challenge  to  a  statute  bears  the  burden  of
demonstrating  the constitutional violation.   A  presumption  of
constitutionality applies, and doubts are resolved  in  favor  of
constitutionality.27  Thus, if we are able to avoid a finding  of
constitutional infirmity by construing the OEI to apply  only  to
the  official  acts of government, our case law directs  that  we
must  do so.  However, we may not read into a statute that  which
is  not  there,  even in the interest of avoiding  a  finding  of
unconstitutionality,  because the extent  to  which  the  express
language  of the provision can be altered and departed  from  and
the  extent to which the infirmities can be rectified by the  use
of  implied  terms  is  limited by the  constitutionally  decreed
separation  of  powers which prohibits this court  from  enacting
legislation or redrafting defective statutes.28
          While  we  often look to legislative intent to construe
the  meaning of ambiguous statutes, we take a slightly  different
approach  when interpreting initiatives enacted by the  voters.29
When  we  construe a statute, we look at both its plain  language
and  at  its  legislative history30 and,  whenever  possible,  we
construe a statute in light of its purpose.31  While [s]tatements
made  by  a  bills  sponsor during legislative deliberations  are
relevant   evidence  when  the  court  is  trying  to   determine
legislative  intent[,]32  we have also observed  that  [w]here  a
statutes  meaning appears plain and unambiguous . . .  the  party
asserting  a  different  meaning bears  a  correspondingly  heavy
burden  of  demonstrating  contrary  legislative  intent.33    By
contrast,  when  we review a ballot initiative, we  look  to  any
published  arguments made in support or opposition  to  determine
what meaning voters may have attached to the initiative.34  But we
will  not accord special weight to the stated intentions  of  any
individual sponsor that are not reflected in the content  of  the
legislation itself.35  To the extent possible, we attempt to place
ourselves  in  the  position  of  the  voters  at  the  time  the
initiative was placed on the ballot, and we try to interpret  the
initiative  using  the tools available to the  citizens  of  this
state at that time.36
          ACL has urged this court to consider the affidavits  of
the  OEIs  drafters and sponsors as we construe  the  initiative.
Kritz  responds that it would be inappropriate to rely  on  these
affidavits  as  evidence of voter intent because materials  which
were not published and distributed to the electorate do not carry
the  indicia  of  trustworthiness from having been  presumptively
distributed  to  and  read by each and every  voter.   We  agree.
Because  we  must  construe  an  initiative  by  looking  to  the
materials considered by the voters themselves, we cannot rely  on
affidavits of the sponsors intent.37  Accordingly, we  will  rely
only  upon  materials that Alaska voters had available and  would
have relied upon to determine the scope and impact of the OEI.
               b.   The OEI was presented to voters as an English-
               only law.
                    
          The   parties  dispute  whether  the  OEI  is  properly
characterized as an English-only law.  ACLs statement in  support
of  the  initiative stated that this bill will have no impact  on
public  or  private  use  of Alaska Native  languages,  that  the
initiative will impose a limit only on the government,  and  that
[p]rivate  citizens will still be able to use any  language  they
want, anywhere, at any time. (Emphasis in original.)  The summary
described  English  as  our  official language,  a  symbol  which
reminds Alaskans of every race, religion, and background of  what
we all have in common.
          In  contrast, the opposition statement of the  American
Civil  Liberties  Union (ACLU) warned that, if enacted,  the  law
will  have severe consequences for the many non-English  speaking
residents  and  citizens of Alaska.  Highlighting some  of  these
consequences,  the  statement cautioned that the  law  would  not
protect  the  use  of  Native languages, that  it  would  require
government  employees  to communicate with  non-English  speakers
only  in  English even if they were able to speak the individuals
language,  that it would bar non-English speakers from  receiving
many  services  to  which they are entitled, and  that  it  would
violate the constitutional rights of each Alaskan to speak in the
language  of  their  choice,  to petition  their  government  for
redress  of grievances, and to equal protection of the laws.   We
agree.
          The  OEI, presented to voters as Ballot Measure 6,  was
entitled Requiring Government to Use English.  The ballot measure
contained  a neutral summary prepared by the lieutenant governor,
a  Legislative Affairs Agency summary, a copy of the full text of
the  proposed  statute,  a statement in support  of  the  statute
drafted by its sponsor ACL, and a statement in opposition to  the
statute drafted by the ACLU.
          The neutral summary stated:
          This  bill requires the state to use  English
          in  all  government  functions  and  actions.
          State  records must be in English.  The state
          means  the  legislature, all state  agencies,
          local  governments, school districts,  public
          corporations   and  the  university.    Those
          entities  may  use non-English languages  for
          international  trade,  emergencies,  teaching
          languages,  court suits, criminal  inquiries,
          for elected officials to talk to constituents
          or to comply with federal law.  Costs of non-
          English  records must be identified.  Persons
          who  speak  only English may  not  be  denied
          state  jobs or services.  The bill  does  not
          affect  private  sector  use  of  non-English
          languages.[38]
          
          The  Legislative Affairs Agency summary explained  that
the  OEI would require each public office, including each  office
of  the state, public corporations and local governments, to  use
          English  in  all functions, except in eleven enumerated
circumstances.   It further explained:  A person  who  is  not  a
public officer or employee may make a statement to the government
in another language if it is changed into English and made a part
of  the  record.  (Emphasis added.)  The summary concluded:   The
government may not stop the use of another language in a  private
function.  A person may sue to enforce this measure.
               c.   The  OEI,  as enacted, governs more than  the
                    official or formal acts of government.
                    
          ACL  argues  that  AS  44.12.310 and  .320,  when  read
together,  support its argument that the OEI was meant  to  apply
only  to the official or  authorized acts of the State, and prove
that the OEI recognizes a common sense distinction between formal
and   informal  acts  of  government.   These  sections  of   the
initiative provide:
          Sec.  44.12.310.   Official  language.    The
          English language is the official language  of
          the State of Alaska.
          Sec. 44.12.320.  Scope.  The English language
          is  the  language to be used  by  all  public
          agencies  in  all  government  functions  and
          actions.  The English language shall be  used
          in  the  preparation of all  official  public
          documents   and   records,   including    all
          documents  officially compiled, published  or
          recorded by the government.
          
(Emphasis  added.)   According to ACL, if the first  sentence  of
section  .320  applied to all acts by government  employees,  the
second  sentence would be unnecessary; thus its inclusion plainly
modifies  the  reach  of the initiative to govern  only  official
state  functions.   ACL maintains that the OEIs language  plainly
contemplates   a   category  of  informal,  unofficial,   written
documents  which it does not purport to govern.   ACL  argues  in
addition that because the OEI contemplates instances in which the
government may use informal written materials in languages  other
than  English, it is reasonable to construe the statute to permit
informal  oral communication in languages other than  English  as
well.   While  ACL concedes that the government must act  through
its  officers and employees, it claims that the OEI requires only
that  they  use English to the extent that they are carrying  out
the government functions and actions of public agencies  that is,
only  to the extent they are performing official, authorized acts
of  government.  We disagree regarding the first sentence  of  AS
14.12.320.
           A  similar argument was attempted  unsuccessfully   by
proponents of English-only laws before the highest courts of both
Arizona   and   Oklahoma.   The  Arizona  court   addressed   the
distinction between official and unofficial acts of government in
Ruiz  v. Hull,39 after the Arizona Attorney General, in defending
the  law,  argued that only official acts of government would  be
affected  by the implementation of Article XXVIII of the  Arizona
Constitution  (the  amendment).40  While  somewhat  more  broadly
     applied than the OEI,41 the amendment similarly provided that
English  must  be  the language of all government  functions  and
actions,42 that all employees of the state must act in English,43
and  that all government documents must be written in the English
language.44   The attorney general maintained that the  Amendment
should  not be read to prohibit public employees from using  non-
English  languages while performing their public  functions  that
could  not  be characterized as official.45  The court noted  the
inconsistency  of that interpretation with both the  language  of
the  amendment,  which  applied to all government  functions  and
actions,  and with the ordinary meaning of those terms, which  do
not impose such a limitation.46  The Ruiz court concluded:
          By  its  express terms, the Amendment is  not
          limited to official government acts or to the
          formal,  policy making, enacting and  binding
          activities of the government.  Rather, it  is
          plainly  written  in  the  broadest  possible
          terms, declaring that the English language is
          the   language  of  .  .  .  all   government
          functions  and  actions and  prohibiting  all
          government officials and employees  at  every
          level  of  state  and local  government  from
          using   non-English  languages   during   the
          performance of government business.[47]
          
          The   Supreme  Court  of  Oklahoma  reached  a  similar
conclusion in In re Initiative Petition No. 366.48  The initiative
at  issue  in  Oklahoma required that [a]ll  official  documents,
transactions,  proceedings,  meetings,  or  publications  issued,
which   are  conducted  or  regulated  by,  on  behalf   of,   or
representing  the  state  and all of its  political  subdivisions
shall  be  in  the English language.49  The court construed  this
provision  to  prohibit  all  governmental  communications,  both
written and oral, by government employees, elected officials, and
citizens, of all words, even those which are of common usage,  in
any language other than English when conducting state business.50
The  court  concluded that this restriction prevented non-English
speakers from effectively communicating with government officials
and from receiving vital information about government.51
          The  same issues are presented in this case.  The first
sentence  of  AS  44.12.320 requires the use of  English  in  all
government functions and actions.  Because the plain language  of
the  initiative  is  so clear, ACL bears a correspondingly  heavy
burden of demonstrating contrary [voter] intent.52  We next  turn
to  an  examination of the ballot materials to determine  whether
ACL has met this burden.
          ACL  points  to no ballot materials that indicate  that
the  voters might have contemplated distinctions between official
and  unofficial  or formal and informal acts of  government  when
they  enacted  the OEI.  The Legislative Affairs  Agency  summary
explicitly stated that, pursuant to the OEI, every public officer
or  employee of the state would be required to use English in all
functions, except in situations governed by the eleven enumerated
exceptions.   While ACLs statement in support of  the  initiative
          claimed that it would limit only government speech and would have
no  effect on the speech of private individuals, it did not state
that the initiative would allow government employees to engage in
informal   or  unofficial  conversation  with  private   citizens
regarding government business in a language other than English.
          Because  the  meaning  of  the  first  sentence  of  AS
44.12.320 appears plain and unambiguous, and because ACL has  not
offered sufficient evidence of contrary voter intent, we have  no
basis  to  find that the voters shared what ACL calls its  common
sense  reading of the initiative.  The first sentence of  Section
.320  plainly mandates the use of English by government  officers
and   employees  in  the  performance  of  their  jobs,   whether
communicating  with  English or non-English speakers,  except  in
specific  circumstances.  Accordingly, we reject ACLs  contention
that  the  plain language of the first sentence of AS  44.12.320,
permits  the unofficial or informal use of languages  other  than
English  by  state officials or employees in the  performance  of
their duties.
               d.   The  second sentence of AS 44.12.320 does not
                    prohibit the use of non-English languages  in
                    unofficial or informal public documents.
                    
          The same principles we applied to the first sentence of
the  OEI  apply here as well.  A presumption of constitutionality
applies, and doubts are resolved in favor of constitutionality.53
If  we  can  save  a  statute, or part of one,  via  a  narrowing
construction,  we  must  do so.54  This presumption  is  limited,
though,  by  our  reluctance  to  step  into  the  shoes  of  the
legislature and redraft legislation.55
          In  contrast to the first sentence of .320, the  second
sentence is capable of  a narrow reading that is supported by its
text  and  by  the  ballot materials.  The  text  of  the  second
sentence    includes    the   word   official,    thus    plainly
contemplat[ing],   as  ACL  argues,  a  category   of   informal,
unofficial  written  documents outside  the  reach  of  the  OEI.
Furthermore,  the  part of the neutral ballot summary  addressing
the second sentence of .320 states only, State records must be in
English.  It does not require that all state records must  be  in
English,  at least suggesting that those state records  that  are
not official are not within the reach of the OEI.  Since the text
of  AS  44.12.320 and the ballot materials demonstrate  that  the
second   sentence  of  section  .320  is  capable  of  a   narrow
construction,   we   are  bound  by  our   rules   of   statutory
interpretation to use that construction.
          Of   what,   then,  does  this  category  of  informal,
unofficial  written  documents  consist?   We  agree  with   ACLs
position that the distinction between official and unofficial  is
a  conceptual  distinction, not a laundry list.  Looking  at  the
record, we are met with various examples of documents that appear
to  be  unofficial  or informal.  They are not published  to  the
public  but  rather are written for an individual  or  a  private
audience.   They  lack  indicia of formality  such  as  seals  or
binding.   They  may  even  be  handwritten.   This  category  of
unofficial or informal documents would include such documents  as
          a note in Spanish from a teacher to a monolingual Spanish-
speaking  parent;  a  letter  from a  city  councillor  in  Yupik
responding to a constituent inquiry; a letter in Tlingit  from  a
public  health  employee offering medical advice; or  an  invoice
prepared in Yupik by a city mechanic for services rendered.  None
of  these  documents is an official public document in the  sense
that  each  one is individually tailored, is geared to address  a
private  inquiry, and is generally not released  to  the  public.
These    enumerated   examples   are   neither   exclusive    nor
comprehensive;  nor by the discussion of these specific  examples
do  we  mean to provide a definitive holding as to their  nature.
This  case  presents, after all, only a facial challenge  to  the
statute.
          Furthermore,  we  construe the second  sentence  of  AS
44.12.320  to mean that multilingual official documents  are  not
prohibited  so  long  as an English version of  the  document  is
published.   The  second  sentence  states  that  [t]he   English
language  shall  be  used  in  official  documents.   The   first
sentence, in contrast, states that English is the language to  be
used.   We  take  this  to mean that the  first  sentence  of  AS
44.12.320 intends an exclusivity of English and has a prohibitory
function.   The  second sentence, in contrast, has  a  permissive
aspect,  allowing the use of non-English languages  in  documents
so  long  as English is also used.  Thus, the OEI would  allow  a
fisheries  notice  to be posted in English and  Yupik;  it  would
allow  the  Department  of  Labor and  Workforce  Development  to
provide written information in English, Tagalog, and Spanish; and
it   would  allow  the  Department  of  Motor  Vehicles  to  give
examinations in multiple languages.  In keeping with this  narrow
construction, we believe, contrary to the argument  of  Alakayak,
that  the  second sentence would not prohibit the publication  of
monograms of graduate student dissertations . . . childrens books
written  in Yupik . . .  ads and messages placed in the Anchorage
Blue  Book  .  .  . or assorted messages and notes  tacked  to  a
community  bulletin board in a Yupik village.  This  construction
is  the  basis for our holding that unconstitutional portions  of
the OEI may be severed from constitutional portions.
          B.    Section  .320  Impacts Constitutionally-Protected
          Speech.
          Having  determined  that  the  first  sentence  of   AS
44.12.320  broadly requires the use of English by all  government
officers and employees in all government functions and actions at
the  state and local levels, we next examine whether this mandate
impacts rights protected by the Alaska or federal Constitutions.
          The  protections for speech provided by the Alaska  and
federal Constitutions are numerous and sometimes overlapping, and
nearly  all of them are relevant to official-English  laws.   The
federal  Constitution provides that Congress shall  make  no  law
.  .  . abridging the freedom of speech, or of the press; or  the
right  of  the people peaceably to assemble, and to petition  the
Government for a redress of grievances.56  The Alaska Constitution
provides that [e]very person may freely speak, write, and publish
on all subjects, being responsible for the abuse of that right.57
The  Alaska  Constitution also provides that [t]he right  of  the
          people peaceably to assemble, and to petition the government
shall  never be abridged.58  We have previously stated  that  the
Alaska Constitution protects free speech at least as broad[ly] as
the U.S. Constitution59 and in a more explicit and direct manner.60
          1.   Section .320 controls more than the content of the
               governments own speech.
          ACL   argues   that   the  OEI   has   no   impact   on
constitutionally-protected  speech  because  the  government  can
determine  the  content,  form, and manner  of  its  own  speech.
According  to ACL, since the OEI governs only government  speech,
no  individual liberty interests are implicated.  In  support  of
this argument, ACL cites four U.S. Supreme Court cases61 for  the
proposition  that  when the state is the  speaker,  it  may  make
content-based choices . . . [because the government may] regulate
the content of what is or is not expressed when it is the speaker
or  when it enlists private entities to convey its own message.62
ACL   argues  that  under  this  state-as-speaker  doctrine,  the
governments ability to make value, policy, or content choices for
its own speech is undisputed.
          Alakayak acknowledges the states discretion to  control
its  own speech, but it argues that ACL places more weight on the
state-as-speaker  doctrine than it can bear.   It  also  disputes
ACLs  characterization of the OEI as investing a monolithic state
government  with a single pro-English message conveyed  by  every
public official, employee, and agency at both the state and local
levels at all times.
          First,  Alakayak  argues that ACL mischaracterizes  the
state-as-speaker doctrine, which Alakayak claims has  never  been
extended further than messages communicated by a narrow sector of
government  (i.e.,  the  grantees of  a  single  federally-funded
program63   or  a  specific  class  of  organization,   such   as
universities64).   Alakayak contends that the OEI,  by  contrast,
requires that the State speak[] with a unitary voice through  all
of  its employees and officers at all times, thus chill[ing]  all
debate  and  discussion by public officials, employees,  and  the
public, and . . . cast[ing] a pall of orthodoxy65 over our entire
system of government and society.  Alakayak also argues that  the
state-as-speaker  doctrine would not apply to  communications  by
all  local governments and departments, agencies, divisions,  and
instrumentalities  of local governments, and all  their  officers
and employees,66 since they are not typically authorized to speak
for the state as its representative, officer, employee, or agent.
          Second,  Alakayak  charges  that  ACL  overreaches   in
characterizing  the OEI as a message.  Alakayak argues  that  the
government  messages that have been upheld by  the  U.S.  Supreme
Court in government-as-speaker cases have been narrow and related
to  a  specific  objective  of a specific  government  program.67
Alakayak  argues  that the OEIs sweeping scope  goes  far  beyond
discrete, affirmative steps to advance the goal of promoting  the
acquisition  of  English-language  skills,  and  instead  imposes
across-the-board  impediments  on  the  ordinary  functioning  of
existing public institutions.  Alakayak argues that imposing  one
message   communication  in  English   on  all  state  and  local
government  employees  distorts  the  functioning  of  government
          entities created to serve entirely unrelated purposes, especially
elected   bodies,  agencies,  and  schools,  in   a   way   never
contemplated by the government-as-speaker cases.
          We   agree  that  ACL  overstates  the  scope  of   the
government-as-speaker  doctrine.  The government  actors/speakers
in  these  federal cases were narrowly defined (specific  funding
grantees,68  universities69)  and  the  government  messages  and
programs   involved  were  specific  (family  planning;70   legal
representation  for welfare clients71).  This presents  a  marked
contrast to the OEI, in which a message  that communication  must
occur  in the English language  is to be conveyed by every  state
and  local  government  official and  employee  in  every  single
interaction such persons have with the public.  While  there  are
undoubtedly  numerous  highly specific situations  in  which  the
state  could  invoke the state-as-speaker doctrine to  justify  a
requirement   that  government  speech  be  in   English,   these
situations  would  represent only a tiny fraction  of  the  total
speech  that  the  OEI covers.72  For example,  the  state  could
publish  all official government documents in English or  require
driver  licensing examinations to be conducted solely in English;
but  the  OEI  requires  the use of English  in  virtually  every
interaction between Alaskas citizens and their government.
          ACLs  argument, that all speech restricted by  the  OEI
can be characterized as government speech subject to the state-as-
speaker  doctrine, must fail.  While we have not previously  been
required  to  articulate  the contours  of  the  state-as-speaker
doctrine, we cannot conclude that the U.S. Supreme Court intended
this  doctrine  to justify a speech ban affecting  every  elected
official  and employee in the legislative and executive branches,
all   departments  and  offices  of  state  government,  and  all
subordinate local governments.  Rather, it appears that the state-
as-speaker  doctrine governs communications  made  by  a  defined
group  of  government  employees or  agents  in  the  pursuit  of
narrowly-focused policy goals.  Accordingly, the  OEI  cannot  be
justified as a limit on the governments own speech.
          2.   Section  .320 impacts the speech rights of private
               citizens and government officers and employees.
               
          Having  determined  that the OEI  is  not  exempt  from
scrutiny as a regulation of the governments own speech,  we  must
next determine what speech rights it implicates.  For the reasons
discussed  below,  we conclude that the OEI  impacts  the  speech
rights  of three distinct groups:  non-English speaking  citizens
who  seek  to participate in public life, elected officials,  and
public employees.

               a.   Section  .320  impacts the  recipient  speech
                    rights  of non-English speaking citizens  and
                    their right to petition the government.
                    
          Alakayak  and  Kritz argue that the OEI  infringes  the
recipient  speech  rights of Alaska citizens.   Recipient  speech
rights  are  predicated  on  the idea that  the  First  Amendment
ensures   public   access   to  discussion,   debate,   and   the
dissemination  of  information  and  ideas.73    As   such,   the
          Constitution protects the right to receive information and ideas,74
because   this  is  a  necessary  predicate  to  the   recipients
meaningful  exercise  of  his own rights  of  speech,  press  and
political freedom.75  Protection of recipient speech rights was a
primary  reason that the Arizona and Oklahoma Supreme Courts  and
the  Ninth  Circuit struck down the English-only laws in  Arizona
and  Oklahoma.76  In all three cases, the courts found  that  the
laws  impacted  the  recipient speech  rights  of  citizens  with
limited English proficiency by preventing them from communicating
with  bilingual employees who would have been otherwise able  and
willing  to provide them with information about the government.77
The  supreme  courts of Arizona and Oklahoma also held  that  the
prohibition constituted an infringement of the right of  citizens
to petition the government.78  While those courts were careful to
clarify  that  their  decisions in no way conferred  a  right  to
multilingual  services, they all suggested the  importance  of  a
citizens right to meaningfully receive important information that
a  government employee was able and willing to provide at no cost
to the state.79  As the  Ninth Circuit stated:
          [T]here  is no claim of an affirmative  right
          to  compel  the state to provide multilingual
          information, but instead only a  claim  of  a
          negative   right:  that  the  state   cannot,
          consistent with the First Amendment, gag  the
          employees currently providing members of  the
          public    with   information   and    thereby
          effectively preclude large numbers of persons
          from  receiving  information that  they  have
          previously received.[80]
          
Alakayak  urges  us to find the OEI unconstitutional  on  similar
grounds  because,  it  asserts, information about  government  is
essential to full participation in civic life, and there are many
bilingual  or multilingual employees who could willingly  provide
this information if they were allowed to do so.
          Alakayak  and  Kritz also argue that the OEI  restricts
the  ability of Alaskas citizens to petition their government,  a
right  protected  both  by  the First Amendment  to  the  federal
constitution  and  by  article  I,  section  6  of   the   Alaska
Constitution.81   Alakayak reasons that because the  OEI  forbids
government  employees from communicating in languages other  than
English,  non-English speakers will face impediments to the  full
exercise  of their right to seek redress for their grievances  or
even  to communicate effectively with government officials.  Such
obstacles  could  arise  when  a  non-English  speaking   citizen
attempts  to  communicate with an elected official or  government
employee  in  a  language other than English, but the  government
agent  is  required to respond in English, even if the  agent  is
conversant  in the other language, and even if it is  clear  that
the citizen will not understand what is being communicated.
          ACL   does  not  address  the  argument  that  the  OEI
restricts  the  right  to  petition the government.   Rather,  it
objects  to  appellees  recipient  rights  analysis  because,  it
claims,  these  rights exist only if there is a willing  speaker,
          which, it asserts, by virtue of the OEI, the state is not.82
According  to ACL, because the law requires  government officials
and employees to communicate only in English, there is no speaker
willing to speak in another language to give rise to a recipients
right to receive a message.83  ACLs argument is not persuasive.
          The  trial  courts  factual findings  contain  numerous
examples  of the ways in which multi-lingual government officials
and  employees  assist  and  provide information  to  non-English
speaking  citizens in the course of performing their  jobs.   For
example,  Henry Alakayak, a member of the city council and  local
community school committee in Manokotak, regularly uses Yupik  in
the  course  of his government duties to assist his  village  and
constituents; several educators indicated that they would not  be
able  to perform their jobs properly if they could not use  other
languages  to  communicate  with students  and  parents;  and  an
employee of the Alaska State Ferry System communicates with  both
co-workers   and  passengers  in  Spanish.   The  pleadings   and
affidavits  submitted  by  appellees  offer  numerous  additional
examples of such behavior.84
          No court has held that a government is constitutionally
required to provide services to its citizens in a language  other
than English,85 and we intimate no such requirement.  But it is an
altogether    different    matter    whether    government    may
constitutionally   prohibit  the  use  of  other   languages   by
government  employees  who are capable  and  willing  to  provide
services in such languages.  A similar sentiment was expressed by
Judge Brunetti in his concurrence in Yniguez:
          While  I  feel  there  may  be  some  tension
          between  the  public  interest  in  receiving
          Yniguezs   public  services  in  Spanish   as
          described  by  the majority,  and  our  prior
          cases  which hold that there is no  right  to
          receive  government services  in  a  language
          other  than  English, our holding today  does
          not conflict with those prior cases. . . .
               As  the majority carefully describes, we
          are  only  considering the  interest  of  the
          public  in  receiving speech when  government
          employees exercise their right to utter  such
          speech, and we do not create an independently
          enforceable   public   right    to    receive
          information in another language.[86]
          
          We agree with Kritz and Alakayak that the OEI adversely
affects  the  recipient  speech rights of  Alaska  citizens  with
limited English proficiency, and that it impedes their ability to
effectively petition the government.
               b.   Section  .320  impacts the speech  rights  of
                    legislators and other elected officials.
                    
          The  right of elected officials to speak freely and  to
communicate  with  their  constituents  is  firmly  grounded   in
constitutional  law.  In Bond v. Floyd87 the U.S.  Supreme  Court
held  that  [t]he manifest function of the First Amendment  in  a
          representative government requires that legislators be given the
widest latitude to express their views on issues of policy.88  The
Court  explicitly rejected the argument that the First  Amendment
protects only free debate about government among citizens, noting
that  legislators have an obligation to speak about controversial
issues to inform and fully represent their constituents.89   Four
justices  of this court reached a similar conclusion  in  finding
that  the  First Amendment protects the right of the governor  to
write  and speak to answer his detractors.90  The Arizona Supreme
Court  and the Ninth Circuit struck down the Arizona English-only
law  in part because it infringed upon the free-speech rights  of
legislators.91 The superior court ruled similarly in this case.
          Alaska  Statute  44.12.340(a)(11)  provides  a  limited
exception  to  the  English-only requirement: It  allows  elected
officials  and  their  staffs to communicate  orally  with  their
constituents in a language other than English if the speakers are
already proficient in the language used.  But this exception  for
oral  communication does not allow legislators to exercise  their
full  speech rights to speak with each other in a language  other
than  English, or even to communicate with their constituents  if
the   elected  officials  are  not  already  proficient  in  that
language;92 in these respects it violates Bond
v. Floyd.93  Moreover, it violates Thoma v. Hickel by restricting
the  ability of elected officials and their staffs to communicate
in writing.94
          ACL does not address Bond, but it argues that Thoma  is
irrelevant  because, under ACLs official/unofficial construction,
the  OEI  touches no protected speech.  We have already  rejected
ACLs contention that the OEI governs only the most formal written
acts  of  government; as discussed in Part IV.A.2., this argument
is  wholly  unsupported  by the text of  the  initiative  or  the
materials  presented to the electorate.  Because the  OEI  limits
the ability of public officials to communicate with each other or
their constituents in a language other than English, we hold that
it  infringes  upon  their right to speak  freely  and  to  fully
represent their constituents.
               c.   Section  .320  impacts the speech  rights  of
                    public employees.
                    
          In Wickwire v. State95 we analyzed the speech rights of
Alaskas  public employees using the test articulated by the  U.S.
Supreme Court in Pickering v. Board of Education of Township High
School District 205, Will County, Illinois.96  The Pickering test
assumes that employees have speech rights, and it analyzes speech-
related  employment decisions by balancing the interests  of  the
[employee],  as a citizen, in commenting upon matters  of  public
concern  and  the  interest  of the State,  as  an  employer,  in
promoting  the  efficiency  of the public  services  it  performs
through its employees.97  In contrast to the speech of citizens on
matters  of  public concern, speech by a government  employee  on
matters  of  only personal interest is generally not  thought  to
enjoy First Amendment protection.98
          ACL  reasons that when a government employee  exercises
his  or her free-speech rights, he or she speaks as a citizen and
          not as an employee; therefore such speech is the employees
private speech, which is specifically excepted from the reach  of
the  OEI  in AS 44.12.370.99  According to ACL, because  the  OEI
requires  officials and employees to speak only in  English  when
conducting  the  business  of  government,  it  implicates   only
government  speech.  Effectively, this argument  reduces  to  the
claim  that  since  the government as employer  can  control  the
content  of  its  own  speech, and since  the  OEI  requires  the
government  to  speak in English, the OEI implicates  no  private
speech.  We disagree with ACLs reasoning.
           As we noted in Part IV.B.1., the OEI governs more than
merely  the  governments  own  speech.   And  a  broad  ex   ante
prohibition on communication runs afoul of our prior construction
of  Pickering.   We  have  previously  noted  the  difficulty  of
predicting in advance what types of employee speech will turn out
to  be  protected,  stating that [d]ue to  the  wide  variety  of
situations in which public employee free speech issues may arise,
the  [Pickering] court expressly declined to establish a  general
standard  against  which the statements of all  public  employees
could be judged;100 rather, Pickering articulates a balancing test
that is applied on a case-by-case basis.101
          In  addition, Alaska law is more protective of employee
speech than is federal law.  Shortly after the U.S. Supreme Court
in Connick v. Myers102 rejected a public employees claim that she
was  fired  for  commenting on a matter of  public  concern,  and
instead   characterized  her  speech  as  an  employee  grievance
concerning internal office policy,103 we stated that:
          [W]e  believe it appropriate to construe  the
          public  concern criteria broadly to encompass
          speech  on a wide range of subjects.  From  a
          public  policy standpoint, it makes sense  to
          encourage    employee   speech   about    the
          operations  of  government  since   employees
          often  are  in  the  best position  to  offer
          informed  opinions.  Our reading  of  Connick
          suggests that there may be instances where we
          would  find  that certain speech addressed  a
          matter  of  public concern and was  protected
          under  Alaskas  Constitution  even  though  a
          federal claim might yield a contrary result.[104
          ]
          
Alaska  constitutional law posits that a public employees  speech
on  matters  of  public concern may indeed be most valuable  when
contributed by an employee as an employee; it does not  recognize
a strict division between the speaker as citizen and as employee.
Because  ACL  concedes that the intent of the OEI is to  restrict
the  speech of public employees as public employees, we  conclude
that the OEI implicates employee speech rights.
          The  Ninth  Circuit  reached a  similar  conclusion  in
Yniguez,  a  case  in which the named plaintiff was  a  bilingual
state employee who feared disciplinary action if she continued to
communicate in Spanish with Spanish-speaking clients.105  The Ninth
Circuit acknowledged that the employees claims did not fit easily
          into the Pickering/Connick citizen speech vs. employee speech
framework, precisely because the same speech in Spanish that  was
of  great  concern to non-English-speaking members of the  public
was  also  the  speech that constituted the  performance  of  the
employees official duties.106  As the Ninth Circuit explained,
          The  employee  speech banned by the  [Arizona
          amendment]   is  unquestionably   of   public
          import.   It  pertains to  the  provision  of
          governmental    services   and   information.
          Unless  that speech is delivered  in  a  form
          that  the intended recipients can comprehend,
          they are likely to be deprived of much needed
          data  as  well as of substantial  public  and
          private benefits.[107]
          
We  agree  that  a wholesale prohibition on speech  in  languages
other  than  English by all state and local government  employees
creates  an untenable risk of preventing employees from  speaking
freely on matters of public concern.  To the extent that the  OEI
bars elected officials and public employees from helping citizens
secure available services and participate fully in civic life,108
it touches upon matters of public concern.
          Having determined that the OEI infringes upon protected
speech, we turn next to whether this infringement may be upheld.
         C.     The  OEI  Is  Not Narrowly Tailored  To  Serve  a
          Compelling State Interest.
          Having  determined that a provision of the OEI  impacts
the  speech  rights of the public, of elected officials,  and  of
public  employees,  we  next address  whether  the  act  survives
constitutional  scrutiny.  This is a multi-part inquiry.   First,
we  consider how the OEI impacts protected speech, for this  will
tell us the level of scrutiny to which the law must be subjected.
Next,  we  identify  and  evaluate the  governments  interest  in
prescribing   the  use  of  English  in  communications   between
government  and  its  constituents.  Finally,  we  determine  how
closely  the means chosen by the OEI fit the ends served  by  the
law.
          1.   The OEI is subject to strict scrutiny.
          How  the  OEI  impacts protected speech determines  the
states  burden  in  upholding  the laws  constitutionality.   ACL
argues that the OEI affects only the form and not the content  of
government  speech,  and that it affects  neither  the  form  nor
content  of citizen speech.  Alakayak and Kritz respond that  the
OEI  constitutes  a content- and viewpoint-based restriction,  as
well as a prior restraint, both in its parts and as a whole.
          The latitude accorded the government to regulate speech
depends   upon   several  factors,  including  the  circumstances
involved  and  the  nature  of the speech.109   But  because  the
principle  of  content  neutrality [is]  at  the  core  of  First
Amendment analysis,110 we begin with this issue.  It is exceedingly
rare  that  any  law restricting speech based on its  content  or
viewpoint will be upheld, for the United States Supreme Court has
stated   that   [c]ontent-based  regulations  are   presumptively
invalid.111   Such  restrictions are  subject  to  the  strictest
          scrutiny, and only a regulation which impinges on the right to
speak and associate to the least possible degree consistent  with
the   achievement  of  the  states  legitimate  goals  will  pass
constitutional muster.112  Restrictions that are content-neutral,
on  the  other hand, are subject to intermediate scrutiny,  which
means  that  they  are  valid provided that  they  are  justified
without  reference to the content of the regulated  speech,  that
they are narrowly tailored to serve
a  significant  governmental interest, and that they  leave  open
ample alternative channels for communication of the information.113
But  even a content-neutral restriction will be subject to strict
scrutiny if it imposes a prior restraint on speech.114   A  prior
restraint is an official restriction imposed upon speech or other
forms  of  expression in advance of actual publication.115   This
stands  in contrast to a punishment imposed after a communication
has been made.116  Both the federal and Alaska Constitutions look
with  disfavor on broad-based prior restraint rules  that  forbid
public  employees  from  engaging in wide categories  of  speech,
whether  related to their official duties or not; such restraints
bear  a heavy presumption against their constitutionality because
of their chilling effect on potentially protected speech.117
          Laws  prohibiting communication in languages other than
English  are difficult to categorize.  We can readily agree  with
the  Ninth  Circuit  that such a restriction  affects  more  than
conduct,  because [s]peech in any language is still  speech,  and
the decision to speak in another language is a decision involving
speech alone.118  But the question whether a law specifying  that
only  one language may be spoken should be classified as content-
based  is  a  closer one.  The OEI does not present  the  classic
example of a content-based restriction, such as a prohibition  on
political  protest based upon the viewpoint represented119  or  a
restriction on sexually explicit television programming.120   But
clearly  such a restriction affects more than the form of speech.
Communication  begins  with language, and a  non-English-speaking
Alaskan  could be absolutely precluded from speaking or otherwise
communicating  with the government by the OEI.   As  the  Arizona
Supreme  Court noted when confronted with a similar  question,  a
law  forcing  communication  only in English  bars  communication
itself; such a restriction cannot be content-neutral because that
designation,   by  definition,  assume[s]  and   require[s]   the
availability of alternative means of communication.121  Thus, like
the  Arizona  Court, we conclude that the OEI is a  content-based
restriction on language.122  But the precise label we attach to the
law  for analytical purposes is not critical when viewed in light
of  the  OEIs sweeping impact.  The OEI prohibits speech  itself:
It  defines a broad category of speech  speech in languages other
than English  and simply forbids it.
          If  all  government communications must be in  English,
some  voices  will be silenced, some ideas will remain  unspoken,
and  some  ideas  will remain unchallenged.  Such  a  requirement
harms  society  as a whole, which is deprived of  an  uninhibited
marketplace  of ideas.123  Complete speech bans, unlike  content-
neutral restrictions on time, place, or manner of expression, are
particularly dangerous because they all but foreclose alternative
          means of disseminating certain information.124  Such a restriction
violates  the  core values protected by the First  Amendment  and
article I, section 5 of the Alaska Constitution.
          Because the OEI literally restricts speech itself  both
oral  and written communications in languages other than  English
it   must   overcome  a  significant  hurdle   to   justify   its
constitutionality.125  Specifically, to withstand  constitutional
scrutiny  the  OEI  must  be  narrowly  tailored  to  achieve   a
compelling government interest.126  We thus turn to the  question
whether  the  State  of  Alaska  has  a  compelling  interest  in
forbidding the use of languages other than English in the conduct
of all government activities.127


          2.   The interests underlying the OEI are compelling.
               
          The  purpose  of the OEI is described in AS  44.12.300,
          which states:
          The  people of the State of Alaska find  that
          English  is  the common unifying language  of
          the State of Alaska and the United States  of
          America, and declare a compelling interest in
          promoting,  preserving and strengthening  its
          use.
          
ACL  argues that the OEI also serves the goal of promoting  unity
among Alaskans with diverse backgrounds through a common language
and  of empower[ing] Alaskas non-English-speaking population with
knowledge of the English language.  ACL further claims  that  the
OEI  promotes  efficiency by limiting the  growth  of  government
services in multiple languages, thereby conserving limited public
resources.  ACL argues that while some might believe, as did  the
superior  court,  that laws about language dont accomplish  much,
such  a  belief  does  not  provide  a  constitutional  basis  to
disparage  the  purposes of the Act as suspect  or  illegitimate,
still less to reject them a priori as ineffective.  Appellees  do
not  address  whether  the  states interests  in  the  challenged
legislation are compelling.
          Courts  have  historically  found  a  broad  range   of
governmental interests to  be compelling.  During one recent term
alone, the United States Supreme Court acknowledged as compelling
the  governments  interests  in  promoting  racial  diversity  in
education,128 its interest in protecting children from pornography,129
and its interest in ensuring fair elections.130  And this court, in
turn, has recently found that the state had a compelling interest
in   protecting  juveniles  and  curbing  juvenile  crime,131  in
maintaining  order  in its jails,132 and in  regulating  campaign
finance.133
          Turning to the specific governmental interests involved
in  this case, courts have recognized the importance of promoting
linguistic unity in a diverse society134 and of helping non-native
English speakers to acquire English language skills.135   As  the
Supreme  Court  of Arizona noted in Ruiz, in our diverse  society
the importance of establishing common bonds and a common language
between  citizens is clear.136  That court went  on  to  say,  We
          recognize that the acquisition of English language skills is
important in our society.137  The importance of English  language
literacy  has  been  recognized by  the  United  States  Congress
through  legislation regarding naturalization and instruction  in
English  as a second language.138  And the United States  Supreme
Court,   in   a   recent  decision  on  access   to   educational
opportunities, noted that [e]ffective participation by members of
all  racial and ethnic groups in the civic life of our Nation  is
essential  if  the  dream of one Nation, indivisible,  is  to  be
realized.139   We  conclude  that the  OEIs  stated  purposes  of
promoting,  preserving and strengthening the use  of  English,140
encouraging the acquisition of English-language proficiency,  and
increasing  the efficiency of government, are, as stated  in  the
OEI  itself, compelling interests.  Accordingly, we turn  to  the
question whether the state can achieve its objective through less
restrictive means.
          3.   The  OEI is not sufficiently narrowly tailored  to
               achieve its ends.
               
          We  have held that in order for a law to survive strict
scrutiny,  it  must be narrowly tailored to promote a  compelling
governmental   interest  and  be  the  least  restrictive   means
available  to  vindicate  that interest.141   The  government  is
constrained  by  how  it may pursue its valid  objectives:  [T]he
means  chosen  to  accomplish the [governments] asserted  purpose
must  be  specifically  and narrowly framed  to  accomplish  that
purpose.142  Accordingly, we look to the enumerated goals of  the
OEI  and we consider whether the means employed to reach them are
the least restrictive available to do so.
          The OEIs first enumerated goal is promoting, preserving
and  strengthening  the  use of English.143   The  means  chosen,
prohibiting  the  use of other languages in  most  instances,  is
considerably  broader  than  other available  alternatives.   For
example,  the  state  could  create and fund  programs  promoting
English  as  a second language.  The goal of arming   non-English
speakers with knowledge of English144 could directly be achieved by
teaching English to non-English speakers.  The goal of conserving
public resources by limiting the use of other languages145 could be
achieved  by legislation that clearly relieves the state  of  the
responsibility  of  providing services in  languages  other  than
English.   We  conclude that the prohibition on the  use  of  all
languages  other  than English in the conduct of  all  levels  of
government in Alaska is not the least restrictive means available
to meet the valid interests of the OEI.
          Indeed,  not  only  is the OEI insufficiently  narrowly
tailored  to  pass  constitutional muster,  but  the  methods  it
employs  in support of its admirable goals may be of questionable
efficacy.   While the statement in support of the ballot  measure
noted  that [w]e need to help people learn English, the OEI  does
not  create  or  expand programs to teach English to  non-English
speakers,  but  merely creates an incentive to learn  English  by
making  it  more  difficult for people  to  interact  with  their
government.146   Nor does it appear that the  OEI  will  increase
efficiency if it prohibits the cost-free use of a language  other
          than English by government officials and public employees.
          ACL  argued  below  that  it was  unnecessary  to  make
provisions for English-language education since other state  laws
address general and bilingual education.  Instead, ACL explained,
the  very  purpose of AS 44.12.320 and the Law  generally  is  to
encourage  English-learning by sending a  clear  message  to  the
public,  and  by  preventing  the  government  from  discouraging
English-learning by unchecked expansion of non-English  services.
In Meyer v. State of Nebraska,147 the U.S. Supreme Court  held that
goals  similar  to the OEIs were insufficient to  justify  a  law
forbidding  schools  from teaching foreign languages  before  the
eighth grade.148  That the state may do much, go very far, indeed,
in  order  to  improve  the quality of its citizens,  physically,
mentally and morally, is clear; . . . but this cannot be  coerced
by  methods which conflict with the Constitution  a desirable end
cannot  be  promoted  by prohibited means.149   Because  the  OEI
attempts to coerce its lawful objectives by methods that conflict
with  the  core  protections  of the  United  States  and  Alaska
Constitutions, the law cannot withstand constitutional  scrutiny.
There  are  less restrictive ways to promote civic unity  and  to
promote,  preserve,  and  strengthen  the  use  of  English.   We
therefore  conclude that ACL has not met its burden of justifying
the   resulting  restrictions  on  the  free  speech  rights   of
government  officers  and employees and the recipients  of  their
speech,  and  on  the  rights  of  citizens  to  petition   their
government.

     D.   The Unconstitutional Provisions Can Be Severed.
          Having   decided   that   the  OEI   unconstitutionally
infringes  upon  the  speech rights of government  officials  and
employees,  and  that it limits Alaskans ability  to  participate
fully  in public life, we must next determine if the law  can  be
saved  by  severing any unconstitutional provisions.  After  oral
argument, and in light of our initial
  reservations  about the constitutionality  of  the  OEIs  broad
reach,  we  asked  the parties to submit additional  briefing  on
whether  any potentially unconstitutional provisions of  the  OEI
could be severed.150  Our review of the parties helpful briefing on
severance has convinced us that the unconstitutional provision of
the  initiative   the  first sentence of  AS  44.12.320   may  be
severed  from  the  remainder  of the  initiative  and  that  the
remainder should be preserved under the standards established  by
our precedents.
          A proper measure of respect for lawmaking by the people
through  the initiative process requires that only those portions
of  initiated  laws that are unconstitutional  should  be  struck
down.   We  have previously held that striking the  whole  of  an
initiative  rather than excising the invalid portion would  place
an  unwarranted  constriction on the  rights  of  the  people  to
express  their will by popular vote.151  This is especially  true
where,  as  in  this case, the initiative contains a severability
clause  requiring that only offending portions  be  stricken  and
that  the  rest  of  the law be retained.152  But  severance,  as
distinct  from  striking down an initiative in its  entirety,  is
          only permissible when established standards are satisfied.
          In  answering whether this is an appropriate  case  for
severance, we first consider the various severance tests we  have
used  in  past  cases  and determine the proper  standard  for  a
statute that has been enacted through the initiative process.  We
then  determine whether the initiative in this case, as redacted,
meets those standards.
          1.   Lynden  Transport is the test for severability  of
               enacted measures, whatever their source.
               
          We  originally  established standards  for  determining
whether  a  statute  is severable in Lynden  Transport,  Inc.  v.
State.153   In that case, we considered a statute that  had  been
enacted by the legislature.154  The Lynden Transport test asks (1)
whether legal effect can be given to the severed statute and  (2)
if  the legislature intended the provision to stand in the  event
other provisions were struck down.155  But neither party in  this
case looks to Lynden Transport for the test for severance.
          ACL  urges that we use the test articulated in McAlpine
v.  University of Alaska156 and most recently applied  in  Alaska
Action  Center  v.  Municipality of Anchorage157  in  determining
severability,   and   the   Alakayak   appellees    assume    its
applicability.   In  those cases, we were faced  with  initiative
proposals  that had not yet been voted upon by the electorate.158
The   McAlpine  test  is  substantially  similar  to  the  Lynden
Transport test except in that it also requires us to look to  the
spirit  of  the  measure.159  We have never had the  occasion  to
determine  whether  the standard applied in McAlpine  and  Alaska
Action Center for the pre-election review of an initiative should
also  apply  to an initiative after it has been approved  by  the
voters.   In  other words, we have not decided which severability
test to apply to enacted initiatives.
          We conclude that there is no compelling reason to apply
a  different  severability analysis to statutes  enacted  by  the
people from those enacted by the legislature.  Thus, there is  no
reason   that  McAlpine  should  apply  to  enacted  initiatives.
Whether a statute was enacted by vote of the legislature or  vote
of the people, the risk involved in severing a statute is that an
erroneous judicial reading of the intent of those who enacted the
statute  will result in a statute that no one wanted. While  this
risk  is  real, it is not qualitatively different for  a  statute
enacted by the legislature and one enacted by the voters.   Thus,
there is no need for a different test.160
           Several other states treat statutes the same  for  the
purposes  of severability regardless of the manner in  which  the
statute  was enacted.  For example, the California Supreme  Court
has  stated  that, in matters of severability, we can discern  no
meaningful  distinctions between statutes enacted by  the  people
and   statutes  enacted  by  the  Legislature.161   Likewise  the
Washington   Supreme  Court  has  stated  that  it   interpret[s]
initiatives based on the same rules of construction we  apply  to
statutes passed by the legislature.162
          For these reasons, we conclude that the proper test  to
apply  in determining severability of the EOI is that set out  in
          Lynden Transport.  We turn now to application of that test.
          2.   The  redacted  initiative satisfies the  test  for
               severability.
               
               a.   The severability clause places the burden  on
                    the  challengers  to  show  that  the  Lynden
                    Transport test is not satisfied.
                    
          At  the outset it is important to note the consequences
of  the  voters  approval  of  the  severability  clause  in  the
initiative, AS 44.12.390.163  The severability clause  places  on
those  challenging the statute  the burden of  showing  that  the
Lynden  Transport  test is not satisfied by a redaction.164    In
Lynden  Transport we adopted with approval the following language
of the United States Supreme Court:
               In   the   absence  of  [a  severability
          clause],   the  presumption   is   that   the
          Legislature intends an act to be effective as
          an  entirety   that is to say,  the  rule  is
          against the mutilation of a statute;  and  if
          any   provision   be  unconstitutional,   the
          presumption is that the remaining  provisions
          fall   with   it.    The   effect   of    the
          [severability  clause]  is  to  reverse  this
          presumption  in favor of inseparability,  and
          create the opposite one of separability.  [In
          the  absence  of a severability clause],  the
          burden   is   upon  the  supporter   of   the
          legislation to show the separability  of  the
          provisions  involved. [In the presence  of  a
          severability clause],  the burden is  shifted
          to    the    assailant    to    show    their
          inseparability. . . .
               [With   a   severability  clause],   the
          presumption     must    be    overcome     by
          considerations  which  establish  the   clear
          probability  that  the  invalid  part   being
          eliminated  the  Legislature would  not  have
          been satisfied with what remains.[165]
The emphasis was added by the Lynden court.  We applied this rule
in  Kenai  Peninsula Borough School District v.  Kenai  Peninsula
Borough School District Classified Association,166 where we  held
that  the  opponents  to  a  school board  collective  bargaining
ordinance  had  not shown that the school board  would  not  have
enacted  the  constitutional portions,  had  it  known  that  two
restrictions  would  be found unconstitutional.167   One  justice
disagreed  with this conclusion but nonetheless agreed  with  the
placement   and  expression  of  the  burden  under  a  statutory
severability  clause, concluding that the record establishes  the
clear  probability that the board would not have  been  satisfied
. . . .168  Thus, our analysis begins with the understanding that
the  burden is on the challengers to show that the voters did not
intend the remaining provisions to be given effect.
          b.   The remaining provisions of the initiative can  be
               given legal effect.
          The  first  part  of  the  Lynden  Transport  test  for
severability, determining whether legal effect can  be  given  to
the remaining provisions of the statute,169 requires us to examine
whether the severed statute requires action or if it is merely  a
statement of public policy.170  This is a relatively low threshold
test that merely requires an enforceable command to implement the
law.171  So, for instance, a statute reduced to the statement that
English is the official language of the State of Alaska could not
be  given  legal effect because it would be only a  statement  of
public  policy.  On the other hand, a statute that  required  the
use of English in all official public documents and records could
be given legal effect since it would require action by government
officials and employees.
          As noted above the OEI must be redacted by severing the
first  sentence of AS 44.12.320.172  Thus limited, it would still
require  that English be used in the preparation of all  official
public  documents and records, including all documents officially
compiled,  published  or  recorded by the  government.173    This
mandate  is consistent with the OEIs purpose of promoting English
as  the common unifying language of Alaskans.  Moreover, it would
require  action  on  the  part of the legislative  and  executive
branches of the State of Alaska and all political subdivisions,174
and  it  could be enforced through a private right of  action.175
Contrary  to the suggestion of the dissent, this court  does  not
hold  that  severance  is justified because  the  .  .  .  second
sentence  of section .320 . . . still serves a useful purpose.176
Rather, the redacted section imposes a substantial obligation  on
the  part  of  state and local governments, and it  reflects  the
complete  scheme that several states have enacted  to  accomplish
their  purposes.177  The first part of the Lynden Transport  test
if,  standing alone, legal effect can be given to  the provisions
that remain after severance of an invalid provision178  is clearly
met here.179
               c.   The  voters intended the remaining  parts  of
                    the statute to stand.
                    
          The  second  part of the Lynden Transport  severability
test  asks whether the voters intended the provision to stand  in
the event that portions of it were struck down.180  As we noted in
Sonneman  v.  Hickel, [t]he key question is whether  the  portion
remaining, once the offending portion of the statute is  severed,
is  independent and complete in itself so that it may be presumed
that the [voters] would have enacted the valid parts without  the
invalid part.181  We answer this question in the affirmative.
          First,  as  discussed above, the initiative contains  a
severability   section:   The  provisions  of   [the   act]   are
independent and severable, and if any provision . .  .  shall  be
held  to  be  invalid by a court of competent  jurisdiction,  the
remainder  . . . shall not be affected and shall be given  effect
to the fullest extent practicable.182  In other words, the voters
have  told  us  that they did intend the remaining  provision  to
stand in the event that portions of the initiative were struck.183
          We dealt with a similar provision in State v. Alaska Civil
Liberties  Union,184 where in reference to a severability  clause
built  into  a campaign financing reform act we stated:  The  Act
contains a severability clause.  Its inclusion indicates that the
legislature intended the remainder of the Act to stand if part of
it were invalidated.185
          This  conclusion  is  buoyed by  our  analysis  of  the
overarching  purposes  of  the  initiative:  unification  of  our
diverse  state.   In  attempting to  make  English  the  official
language of the state of Alaska, the initiative proceeds  on  the
assumption that a common language is thought to exert a  unifying
force.   As  the statement in support noted: Like our  flag,  the
pledge  of  allegiance, and our national anthem, English  as  our
official  language is our symbol.  These symbols remind Americans
and  Alaskans of every race, religion, and background of what  we
all  have  in common.  The initiative, as redacted, continues  to
reflect  the  voters belief in the unifying  force  of  a  common
language  and their intent that provisions establishing a  common
language be upheld to the fullest extent practicable.186
          Moreover,  the voters had the benefit of  the  sponsors
statement  in  the election pamphlet, and it is  clear  that  the
sponsors  of the initiative  who drafted the severability  clause
favored  preservation  of the constitutional  provisions  of  the
initiative.   Alaskans  for  a  Common  Language  has   filed   a
supplemental brief so indicating:
               To   the  extent  this  court  may   now
          conclude that certain provisions, such as the
          first   sentence   of  AS  41.12.320,   might
          otherwise   give   rise  to   an   unintended
          unconstitutional application of the act,  ACL
          respectfully submits that both the Initiative
          itself  and  this  Courts precedents  require
          that  any  such provision should be  severed.
          Such  severance, rather than invalidation  of
          the act, would give effect to the meaning  of
          the  Initiative as set forth in the  Act  and
          its stated purposes as adopted by the voters.
          
The  intent  and desire of the sponsors is therefore clear.   And
apart  from  the voters indication of intent in the  severability
clause,  we  do know that the initiative was well  received.   It
passed with the approval of more than sixty-eight percent of  the
voters.   It is difficult to construct an argument as  to  why  a
version   of   the   initiative  shorn  of  the  unconstitutional
provisions  but  still  establishing  English  as  the   official
language of the state and requiring that English be used  in  all
official  documents  and  records would  be  any  less  favorably
received.  The opponents of the initiative before this court have
not  attempted to make a case as to why this might be  so.   They
have  thus  failed to meet their burden of showing,  by  a  clear
probability,  that  the  voters  would  not  have  supported  the
initiative as redacted.
          We  conclude that the initiative is severable,  because
(1)  the  remaining provisions can be given legal effect and  (2)
          the voters intended that they be given effect.  The requirement
that  the  government use English in official  documents  can  be
given  legal  effect and is enforceable.  Indeed, as noted,  many
official  English  acts in other states are  limited  to  similar
provisions.187  The initiatives challengers have  not  met  their
burden  of showing the clear probability that severance  was  not
intended by the voters.188 The presumption in favor of severability
leads  us to conclude that the voters intended that, if  a  court
were  to  strike the first sentence of AS 44.12.320,  the  second
sentence of that section should stand.
     E.   The   Remaining  OEI  Provisions  Must   Be   Construed
          Narrowly.
          In  this  opinion we have decided the constitutionality
of the principle provision of the OEI, AS 44.12.320, striking the
first sentence of that section but upholding the second sentence.
Because  the  remaining provisions of the OEI relate  to  section
.320,  our  holdings as to the constitutionality of that  section
have  implications for the remainder of the OEI.  Some provisions
may  be  rendered superfluous or hortatory.  Others  may  present
similar  constitutional concerns to the ones  we  thus  far  have
considered.   As such the parties may desire that we analyze  and
parse  each  line  of  the  OEI in  a  search  for  a  definitive
constitutional ruling on each.189
          We are mindful, however, that the case comes to us as a
facial  challenge  to  the statute.  In  such  cases  it  is  our
practice  to reserve as many questions for as-applied  challenges
as  possible, in keeping with the legislative policy stated in AS
01.10.130:
          Any  law  heretofore or hereafter enacted  by
          the   Alaska   legislature  which   lacks   a
          severability  clause shall  be  construed  as
          though   it  contained  the  clause  in   the
          following language: If any provision of  this
          Act, or the application thereof to any person
          or   circumstance   is  held   invalid,   the
          remainder of this Act and the application  to
          other  persons or circumstances shall not  be
          affected thereby.
          
This  provision  further  animates  our  decision  to  sever  the
unconstitutional provision of the OEI rather than invalidate  the
entire  act.   We  have  consistently severed  laws  rather  than
invalidating  them  when  construing  this  general  severability
clause.190  The presence of a specific severability provision  in
the OEI191 only strengthens our conclusion in this regard.
          When we consider the facial invalidity of a statute, we
require  the party seeking to invalidate the statute to bear  the
burden   of   demonstrating  the  necessity  of  invalidation.192
Similarly,  a  party  seeking to invalidate a  statute  in  whole
rather  than  in  part  bears  the burden  of  demonstrating  the
unconstitutionality of the entire act.193  We do not believe that
the  appellees  have met this burden as to the remainder  of  the
OEI.194
          We  are  further  bolstered in our inclination  not  to
          consider each of the other sections of the OEI at this time by
the  states  apparent  willingness  to  implement  the  OEI  with
clarifying  regulations, including a regulation to  clarify  that
the  second  sentence  of  AS 44.12.320 does  not  prohibit  oral
communication between state employees and the public in languages
other  than  English.  Any further consideration of  the  OEI  we
leave  to as-applied challenges, confident that setting  out  the
relevant interpretive principles in this opinion as a guide  will
assist the parties and the courts to resolve such challenges.
V.   CONCLUSION
          Because  a  portion of the Official English  Initiative
the  first  sentence of AS 44.12.320  violates  the  federal  and
Alaska  constitutional rights to free speech and to petition  the
government,  we  hold  that the Official  English  Initiative  is
unconstitutional    as    enacted.    Because,    however,    the
unconstitutional provision is severable from the initiative,  and
the  remainder  of  the section is capable  of  a  constitutional
construction,  we  uphold  the constitutionality  of  the  second
sentence of AS 44.12.320.  We find it unnecessary at this time to
consider  in greater depth other sections of the law, other  than
to  note  that, in the event of a future challenge, they must  be
construed narrowly if possible to avoid unconstitutionality.   We
thus  AFFIRM  in part, and REVERSE in part, the judgment  of  the
superior court.
BRYNER, Chief Justice, dissenting.
          I  agree  with todays ruling that section .320  of  the
Official  English  Initiative  is  unconstitutional  because   it
violates  protected freedoms of speech.  But I do not agree  that
this  infirmity  can  be  cured by severing  the  sections  first
sentence  and giving the remaining language of the  section   and
the  entire initiative as well  a new meaning that conflicts with
its plain meaning as originally enacted.  Nor do I agree that the
courts  decision to rewrite section .320 can justify its  refusal
to  recognize  and address the obvious overbreadth problems  left
unresolved  in  the  initiatives remaining  provisions.   Because
section .320 is the initiatives  keystone provision, because  its
original  purpose  and meaning are plainly unconstitutional,  and
because  no court has the power to redraft an invalid statute,  I
believe   that  the  constitution  requires  us  to  strike   the
initiative in its entirety.
I.   SALVAGING THE INITIATIVE
     A.   Narrowing Construction
          As  the  court  recognizes  in  Part  IV.A.2.b  of  its
opinion,  the Official English Initiative (OEI) was presented  to
the  voters as an English-only law.  The core provisions  of  the
initiative are sections .320, Scope, which describes when English
must   be  used,  and  .340,  Exceptions,  which  specifies  when
languages   other  than  English  are  allowed.1   Section   .320
sweepingly extends the English-only requirement to all  functions
and  actions  performed by government officials and  all  written
materials they prepare:
               Sec.  44.12.320.   Scope.   The  English
          language  is the language to be used  by  all
          public  agencies in all government  functions
          and  actions.  The English language shall  be
          used  in  the  preparation  of  all  official
          public  documents and records, including  all
          documents  officially compiled, published  or
          recorded by the government.
          Section .340 then describes eleven limited purposes for
which   government  officials  may  use  other   languages   when
necessary;  it also specifies that private citizens  who  address
government  officials may communicate in a  language  other  than
English,  but  only  if  their  statements  are  translated  into
English:
               Sec.  44.12.340.  Exceptions.   (a)  The
          government,  as defined in AS 44.12.330,  may
          use   a  language  other  than  English  when
          necessary for the following purposes:
          
               (1)   to  communicate health and  safety
          information or when an emergency requires the
          use of a language other than English;
               (2)    to  teach  another  language   to
          students proficient in English;
               (3)   to  teach English to  students  of
          limited English proficiency;
               (4)  to promote international relations,
               trade, commerce, tourism or sporting events;
               (5)   to protect the constitutional  and
          legal rights of criminal defendants;
               (6)   to serve the needs of the judicial
          system   in  civil  and  criminal  cases   in
          compliance with court rules and orders;
               (7)   to  investigate criminal  activity
          and protect the rights of crime victims;
               (8)   to  the extent necessary to comply
          with   federal  law,  including  the   Native
          American Languages Act;
               (9)   to  attend  or  observe  religious
          ceremonies;
               (10)  to  use non-English terms of  art,
          names,  phrases, or expressions  included  as
          part  of communications otherwise in English;
          and
               (11)    to   communicate   orally   with
          constituents by elected public officials  and
          their staffs, if the public official or staff
          member  is  already proficient in a  language
          other than English.
          
          (b)   An individual may provide testimony  or
          make  a  statement  to the  government  in  a
          language   other   than   English,   if   the
          individual  is not an officer or employee  of
          the  government,  and  if  the  testimony  or
          statement  is  translated  into  English  and
          included in the records of the government.
          
          All  members of the court, including myself,  agree  on
the  intended  meaning and dominant purpose of these  provisions.
Todays opinion correctly rejects the argument of Alaskans  for  a
Common  Language, Inc. (ACL) that we should read  the  initiative
leniently,  so  that  it  applies only  to  formal  and  official
documents and records.  As the opinion states in concluding  that
section .320 as a whole cannot be read leniently:
          Because the meaning of the first sentence  of
          AS  44.12.320  appears plain and unambiguous,
          and  because  ACL has not offered  sufficient
          evidence of contrary voter intent, we have no
          basis to find that the voters shared what ACL
          calls   its  common  sense  reading  of   the
          initiative.   The first sentence  of  section
          .320  plainly mandates the use of English  by
          government  officers  and  employees  in  the
          performance    of   their    jobs,    whether
          communicating  with  English  or  non-English
          speakers,  except  in specific  circumstances
          [enumerated      in     AS     44.12.340(a)].
          Accordingly,  we reject ACLs contention  that
          the  plain language of the first sentence  of
          AS   44.12.320  permits  the  unofficial   or
          informal use of languages other than  English
          by   state  officials  or  employees  in  the
          performance of their duties.
          All  members  of  the  court  further  agree  that,  so
construed,    the    initiatives    requirements    impinge    on
constitutionally  protected  rights  of  free  speech   and   are
therefore  invalid.   Yet despite this understanding  of  section
.320s  plain and unambiguous meaning, the court proceeds to  give
the second sentence of section .320 precisely the meaning that it
just rejected for the section as a whole.
          Because the second sentence  of section .320 refers  to
official documents and records, the court reasons, it is  capable
of   a  narrow  reading,  which,  in  the  courts  view,  plainly
contemplates  a  permissible  category  of  informal,  unofficial
written  documents outside the reach of the OEI.  The court  also
points  out  that the initiatives neutral ballot  summary  stated
that  [s]tate  records must be in English; in  the  courts  view,
because this wording fails to specify that all records must be in
English, it at least suggest[s] that those state records that are
not  official are not within the reach of the OEI.  Finally,  the
court  finds  nuanced  meaning  in  subtle  phrasing  differences
between  section .320s two directives to use English:  the  first
sentence  directs that [t]he English language is the language  to
be  used,  while  the second directs that [t]he English  language
shall  be  used.   The  court takes this difference  in  the  two
otherwise clear directives as showing a permissive aspect in  the
second  sentence   an  aspect allowing  the  use  of  non-English
languages in documents so long as English is also used.
          Through   the   narrow   opening   created   by   these
infinitesimal  textual gaps, the court leaps immediately  to  the
conclusion  that, because doubtful meaning should be resolved  in
favor  of  constitutionality,  it  has  a  duty  to  adopt   this
artificially  narrow  reading of the second sentence.  The  court
makes  no  effort  to  first determine whether  this  meaning  is
textually  or contextually plausible.  Given the second sentences
newly  declared  meaning, the court leaps once more  to  conclude
that    the    entire    initiative   can   be    rescued    from
unconstitutionality  by severing the first  sentence  of  section
.320 and allowing the second to stand  again making no attempt to
ask  first whether the severed statute it adopts makes any  sense
in  light  of the primary purpose and dominant intent  underlying
the initiatives original version.
          This   interpretive  process  results  in  a  radically
rewritten  law that bears no realistic semblance to  the  version
originally  presented  to and enacted by Alaska  voters.  By  the
courts  own account, the initiative started out, and was sent  to
the  voters,  as a comprehensive and inflexible English-only  law
that  covered  the  entire universe of government  communications
spoken   and   written   and  ranked  among  the   nations   most
restrictively  worded official-English law[s] to date.2   Yet  as
revised by the court, this law has now morphed into a modest  and
permissive measure that welcomes the use of all languages in  all
government functions and actions, spoken and written, as long  as
the  government makes sure to keep an English version of official
          documents and records (whatever the court might later define that
phrase  to  mean).   Put simply, a law originally  meant  to  say
English  only and always (except as necessary in a few  specified
situations)  now says English sometimes but not  always  or  only
and we cant tell yet exactly when.
          In my view, this interpretation makes no sense, and its
adoption   violates   settled  principles   governing   statutory
construction  and  severance of unconstitutional  language.   Our
duty  to  construe  statutes in a way that avoids  a  finding  of
unconstitutionality is firmly constrained, as the court notes, by
the constitutionally decreed separation of powers which prohibits
this  court  from  enacting legislation or  redrafting  defective
statutes.3   Accordingly,  we  are authorized  to  use  narrowing
constructions as a way of avoiding unconstitutional results  only
where it is reasonable to do so.4  And we have recognized that  a
narrowing  interpretation will be reasonable only if  it  can  be
adopted without doing violence to the manifest legislative intent
of  the  statute  at  issue.5  To this end,  in  determining  the
reasonable  meaning of a law, courts regularly look for  guidance
to  the  fundamental canon of statutory interpretation  that  the
words of a statute must be read in their context and with a  view
to their place in the overall statutory scheme.6  In other words,
we  must  not  be  guided by a single sentence  or  member  of  a
sentence, but look to the provisions of the whole law, and to its
object and policy.7
          In  reflexively giving the second sentence  of  section
.320  the  narrowest meaning it could possibly have in the  first
sentences  absence, todays opinion completely  forgets  to  apply
these  prudential rules by ignoring the second sentences  meaning
in  its  original context  the meaning that sentence  had  as  an
integral  part  of  section .320 as a  whole  as  that  provision
appeared in its original form.  The courts interpretation of  the
second  sentence  in  isolation from the  first  is  consequently
unsound  both textually and contextually.
           As  a textual matter, there is simply no basis for the
courts assumption that the second sentences reference to official
documents  implies a permissible category of informal, unofficial
written  documents  outside the reach of  the  OEI.   The  courts
assumption ignores a simpler and more likely meaning of  official
documents  and  records   that  is,  all  documents  and  records
prepared or retained by government employees in performing  their
official  functions and actions.  Indeed, the restricted  meaning
proposed  by  the court quickly becomes implausible when  carried
over  to other parts of the initiative.  If we accept the  courts
proposed  interpretation  of the word  official,  parallel  logic
would  advise  us  to read section .310s broad  declaration  that
[t]he  English language is the official language of the State  of
Alaska8  as  implying  the existence of an  informal,  unofficial
language outside the reach of the OEI  a meaning that nobody  has
even thought to propose.
          Moreover,  section  .320s second sentence  incorporates
other  wording  that rules out the courts proposed interpretation
of  official  documents  and records.  Specifically,  the  second
sentence  requires English to be used not just  in  all  official
          public documents and records, as todays opinion suggests, but
rather  in  the preparation of all official public documents  and
records.9   Accordingly, the text of the second sentence  evinces
an  unambiguous intent to extend its English-only requirement  to
all  informal writings that precede the governments formal public
documents and records.
          The  second sentences surrounding context points to the
same conclusion.  As already noted, the first sentence of section
.320   unequivocally   extends   the   initiatives   English-only
requirement to all actions and functions performed by  government
officers and employees.  Because writing performed in the  course
of  government  work  falls  within  the  meaning  of  government
functions  and actions, the first sentence of section .320  would
normally  extend  its English-only requirement  to  all  writings
produced  in  the course of government employment, regardless  of
the  second sentences presence.  Given the first sentences  broad
reach,  the  second  sentence can best be understood,  not  as  a
sentence  that covers the act of writing, but rather as one  that
covers  the  governments preparation and  retention  of  writings
produced by or submitted to the government for public use.
          While  the  two  sentences  may  well  overlap   to   a
considerable  extent when read in this way, the  second  sentence
nonetheless  served  a valuable purpose in its  original  context
that  is,  as  part of an initiative designed to apply  a  strict
English-only  requirement.   By  cementing  the  point  that  all
writings   produced  by  government  functions  and  actions   or
submitted from other sources must always stay in English if  they
are  to  be  kept as public records and documents, this  sentence
closes any potential gaps left open by the first.  When construed
in  context  with  the  original initiative  as  a  whole,  then,
including  its  sibling  first  sentence,  the  second   sentence
originally meant to strengthen, not to dilute, the force  of  the
first.
          Indeed, the courts own expressed understanding  of  the
plain  language  of the first sentence of AS 44.12.320  conflicts
with its proposed narrow reading of the sections second sentence.
The  court  properly concludes that section .320 is incapable  of
being read in its entirety to permit[] the unofficial or informal
use  of  languages  other  than English  by  state  officials  or
employees  in  the  performance  of  their  duties.  Given   this
conclusion,  the courts proposal to read the second  sentence  of
the  section as having precisely that meaning would make no sense
in  the  sentences original context.  Thus, as now adopted,  this
narrow meaning does violence to the manifest original purpose  of
section .320.
          A  different  contextual  anomaly  arises  between  the
courts  proposed  narrow meaning of section .320  and  the  plain
meaning of section .340.  As we have seen, section .320 sets  out
the scope of the initiatives English-only requirement by defining
the  circumstances in which English must be used,  while  section
.340  defines the permissible uses of other languages by adopting
an exclusive list of specific exceptions that can be invoked only
when  necessary.10   Because section .340s  exceptions  encompass
situations involving both written and spoken language, the courts
          proposed reading of section .320 would have a paradoxical effect
on  section .340: as a permissive provision allowing the  use  of
non-English  languages in documents so long as  English  is  also
used,  section .320s provisions governing writings  would  become
broader   than  section  .340s  exceptions,  thus   turning   the
exceptions into restrictions.
          In  short,  because  the  courts  proposed  reading  of
section   .320s   second   sentence  is  textually   implausible,
contextually  unreasonable, and does  violence  to  the  manifest
legislative intent of section .320 and the initiative as a whole,
that narrow meaning fails to offer a viable path for avoiding the
provisions unconstitutionality.  Other courts considering  nearly
identical  English-only provisions in the only two  other  states
where  they were adopted or proposed have not hesitated to strike
them  as facially unconstitutional.11  Neither should we.  As  we
have  previously ruled on similar occasions, at  some  point,  it
must be assumed that the legislature means what it says.12
     B.   Severance
          Separate  problems  arise from the  courts  attempt  to
invoke  severance  as a means to enact its recrafted  version  of
section  .320s second sentence.  This courts authority  to  sever
unconstitutional  provisions from an act derives  from  the  same
source  as its power to adopt narrowing constructions: the courts
duty to uphold a statute as constitutional whenever the result is
reasonably  possible.   As  Sutherland  explains,  [t]he   courts
recognize a duty to sustain an act whenever this may be  done  by
proper   construction,  and  extend  the  duty  to  include   the
obligation to uphold part of an act which is separable from other
and repugnant provisions.13
          By  the  same  token, the courts severance  powers  are
restrained by the same constraints that fence its powers to adopt
limiting constructions: If a court finds a statute or portions of
it  unconstitutional, it has the power to strike it down or sever
the  invalid portion.  It does not have the power to redraft  the
statute as that is the province of the legislature.14   Thus, not
only must the remaining portion of a severed statute be valid  as
a  law  by itself,15 but it must also give effect to the apparent
intention   of   the  legislature  that  enacted   the   original
provision.16  Just as a court must do when it considers  adopting
a  narrowing  construction, a court contemplating severance  must
initially determine that severing the invalid portion will not do
violence  to  the  intent  of the legislature.17   If  the  court
determines  instead that by sustaining only a part of a  statute,
the  purpose of the act is changed or altered, the entire act  is
invalid.18
          In  keeping with these principles, our severance  cases
have often observed that, for purposes of determining whether the
legislature would have wanted to enact the remaining portion of a
severed  statute,  the critical inquiry is  whether  the  severed
portion  remains  faithful  to  the  primary  intent,19  dominant
purpose,20  spirit,21  or primary goal22 of  the  entire  act  as
originally  enacted.23  We have emphasized that  [i]n  the  final
analysis, a court must endeavor to fathom the legislative  intent
from  all  sources available to it.24  This focus  makes  eminent
          sense because, unless the remaining provisions are faithful to
the intended meaning of the original measure, they will amount to
an impermissible judicial revision of the original law.25
          Yet  here,  in deciding to sever the first sentence  of
section  .320, reconstrue the second, and leave the rest  of  the
initiative  intact, the court never once stops  to  consider  the
effects  of  its  ruling on the initiatives original  intent  and
dominant  purpose, which openly conflict with the intent  of  the
severed  initiatives remaining provisions.   After  all,  as  the
court  itself acknowledges early on in its opinion, the  original
initiative  meant  to  impose  a  uniquely  stringent  and   all-
encompassing   English-only   requirement   on   all   government
communication.   In contrast, the revised law as  it  now  stands
freely  allows government communication in any language  for  any
purpose,  as  long  as English versions of official  records  and
documents   are  kept.   Moreover,  as  the  court  admits,   its
interpretation  of  section .320 makes other  provisions  of  the
initiative  superfluous or hortatory  a classic sign  of  changed
meaning and improper severance.
          Instead of focusing on the initiatives original  intent
and  purpose, the courts opinion seems to suggest that  severance
is  justified  because the newly interpreted second  sentence  of
section  .320 now has a constitutionally permissible meaning  and
still  serves a useful purpose.  But as I have already explained,
the  court  minted its new interpretation of the second  sentence
after  striking the first sentence, and without initially  asking
whether  the   interpretation  did violence  to  the  initiatives
original  intent and purpose; had the court stopped  to  ask,  it
would  have  found  that  its permissive reading  of  the  second
sentence conflicts with the basic purpose that the initiative was
intended to serve  to impose a strict English-only requirement on
all   government  speech.   Because  of  this  conflict,  it   is
bootstrapping26  for the court to use severance  as  a  means  to
enable  it to give the second sentence of section .320   and  the
redacted  section  as a whole  a  new meaning that  the  original
initiative never meant to enact.
          Gottschalk  v.  State27  illustrates  the  proposition.
There,  the legislature had defined a criminal defamation law  to
include  an  overbroad  culpable mental  state  requirement.   On
appeal,  the  state  urged  this court  to  sever  the  overbroad
provision  and  construe a related provision of  the  statute  as
incorporating   a   constitutionally   permissible    mens    rea
requirement.28  Characterizing the states argument as  a  request
for  radical reconstruction that asked us to undertake  a  wholly
inappropriate   judicial   activity   amounting    to    judicial
legislation,29 we declined the request:
          We  recognize  the rule of construction  that
          where  it  is reasonably possible to  do  so,
          statutes  should  be construed  in  a  manner
          consistent  with constitutional requirements.
          Here, however, as in Campbell . . . , we  are
          not  able  to  save the statute  in  question
          because in doing so we would be stepping over
          the  line  of interpretation and engaging  in
          legislation.[30]
          Todays opinion leans heavily on the initiatives express
severance  clause and the general severance preference  appearing
in  the  Alaska Statutes.  The opinion seems to suggest that  the
electorates  expressed preference for severance  somehow  confers
special  powers  on  the court to rely on the severance  doctrine
when   its  use  might  otherwise  be  barred.   But  the   court
misunderstands the limited role of a severance clause.  A general
severance  law  like  AS  01.10.03031 or a specific  severability
provision  like  AS  44.12.39032 simply  works  to  override  the
traditional  presumption  against  severance  by  establishing  a
presumption in favor of severance.33  Because legislative  powers
are  not  delegable and belong to the legislature or the  voters,
severance  clauses  do  not bestow courts  with  any  substantive
authority to sever.  As Sutherland explains, it should be kept in
mind  that the authority of a court to eliminate invalid elements
of  an act and yet sustain the valid elements is not derived from
the  legislature, but rather flows from powers  inherent  in  the
judiciary.34   Nor  do  severance clauses  establish  a  specific
legislative  intent  as  to particular statutory  provisions;  at
most,  they  merely create a slight generalized  preference  that
helps guide the court when more specific evidence concerning  the
legislatures actual intent is close:
          It    would    seem   that    the    soundest
          interpretation  of this language  [discussing
          preference  clauses]  is  that,   whereas   a
          specific severability clause creates a slight
          presumption  in  favor  of  severability,   a
          general   clause  creates  an   even   weaker
          presumption.  For all practical purposes, the
          difference between the two is negligible.[35]
          In each case, then, courts must look to the totality of
the  evidence  bearing  on the content of  the  measure  and  the
circumstances surrounding its proposal36 in order to  decide  the
legislatures  likely intent on the particular severance  question
at  issue:  [i]n  the final analysis, a court  must  endeavor  to
fathom the legislative intent from all sources available to it.37
And  as  previously mentioned, this endeavor typically begins  by
centering  on  the  primary intent and dominant  purpose  of  the
original enactment.38
          Todays  opinion  completely  fails  to  undertake  this
endeavor.  The closest it comes are its brief discussion  of  the
overarching symbolic importance that an official-English  measure
can  have;  its  description of the fervent  plea  for  severance
advanced in ACLs supplemental brief; and its cryptic reference to
the  initiatives opening provision, AS 44.12.300,  which  broadly
finds  that English is the common unifying language of the  State
of Alaska and the United States of America, and then declare[s] a
compelling  interest in promoting, preserving  and  strengthening
its  use.   But  the  courts  approach mistakes  the  initiatives
abstract  statement  of hopes and aspirations  for  the  concrete
content  of  the  measure and the circumstances  surrounding  its
proposal.39  The voters likely intent in enacting the  initiative
must  be realistically gauged by what the initiatives substantive
          provisions actually do, not by the aspirational goals the voters
eventually hope to attain.40
          The  danger  posed by the courts approach lies  in  the
inevitable  temptation  it creates to  overreach  the  limits  of
judicial  power  by  trying  to redraft  an  initiative  to  mean
something that the court believes the voters would have wanted to
enact  had  they proposed a constitutionally valid measure.   The
court  in  effect  converts ACLs sincere desire to  do  something
constitutional along the initiatives general lines   its  fervent
wish to adopt some valid form of official-English measure if  its
English-only initiative would not pass muster  into a mandate  to
engage  in  judicial  legislation.   The  institutional  harm  of
succumbing  to  this temptation is that it leads to  public  laws
drafted and enacted by judges  a power that the Constitution does
not  confer  on  the  judicial  branch,  but  always  allows  the
legislature and the voters to pursue for themselves.
          This  type  of  danger, and the need to avoid  it,  was
recognized  and aptly described in State v. Zarnke,41 a  decision
of  the  Wisconsin  Supreme Court in a  criminal  appeal  raising
severance  issues similar to the ones we considered in Gottschalk
v.  State.42   In  Zarnke, the court addressed a challenge  to  a
recently  enacted criminal law that shifted the burden  of  proof
from the state by requiring the defendant to prove the absence of
guilty  knowledge.43   The trial court had dismissed  the  states
charge   against   Zarnke,   concluding   that   the   law    was
unconstitutional under the legal theory charged  in  his  case.44
In the intermediate court of appeals, the state conceded the laws
unconstitutionality but convinced the intermediate court to sever
the provision of the law imposing the unconstitutional burden and
to  construe  the laws remaining provisions as incorporating  the
conventional requirement giving the state the burden  of  proving
the element of guilty knowledge beyond a reasonable doubt.45
          The Wisconsin Supreme Court granted Zarnkes petition to
review  the  intermediate courts severance ruling.46   The  state
then  renewed the severance argument it had raised below, but  it
advanced  a new theory to support the argument, urging the  court
to rule that, even though the legislature had clearly intended to
adopt the current laws allocation of burdens, it was nevertheless
proper  to sever the invalid provision and reinterpret  the  laws
remaining  provisions because the legislatures underlying  intent
had  been to enact the most rigorous guilty-knowledge requirement
that the constitution would permit.47
          The  supreme  court  reversed the  intermediate  courts
severance  ruling.48  Although it accepted the states description
of  the  legislatures underlying intentions,  the  court  roundly
rejected the states new theory of severance and reinterpretation,
explaining its ruling as follows:
               At  oral  argument, the State  suggested
          that  the  legislatures  explicit  intent  as
          evinced  by legislative history is  not  what
          appears  to  be most clear from a reading  of
          that  history.   Instead, the State  suggests
          that  we  should  consider  the  legislatures
          implicit intent, which it believes was really
               an intent to enact legislation that would
          allow  it to legislate to the limits  of  the
          constitution. . . .
          
               We  might agree with the State that  the
          legislatures implicit intent was to  draft  a
          statute  that  went  to  the  limits  of  the
          constitution.  However, that the  legislature
          intends   to   pass   statutes   which    are
          constitutional  is always our starting  point
          in  such an inquiry as this.  But were we  to
          rewrite   a   statute  whenever   it   failed
          constitutional muster in order  to  save  it,
          using  any  means  possible, the  legislature
          would  soon  realize  that  it  need  not  be
          concerned  with  constitutional  limitations:
          the judiciary could always be relied upon  to
          mend  and  mold  its language to  fit  within
          constitutional constraints.[49]
          
Here,  neither  the  initiatives  severability  clause  nor  ACLs
commendable aspirations can dispel the conclusion that  the  weak
and  largely symbolic official-English law the court  now  adopts
diverges radically from the restrictive and inflexible intentions
manifested in the original initiatives deliberately sweeping  and
restrictive  English-only requirements.  As todays opinion  makes
clear,  if  the  initiatives sponsors had  wanted  to  propose  a
moderate  and permissive official-English initiative, they  would
have  had numerous examples to use as models  indeed, they  still
have  those  models and are free to propose them.   Instead,  the
initiatives  sponsors  chose to propose a carefully  crafted  and
elaborately structured measure that, the court concedes,  clearly
and  unambiguously mirrored the nations most restrictively worded
official-English law[s] to date.50
          Today the court claims to have transformed the original
initiative  from a divisive, zero-tolerance English-only  mandate
into  a  unifying and permissive symbol of our common  linguistic
bond;  yet in the same breath, the court declares that it sees no
real change in the original initiatives basic meaning and primary
intent.   The  courts goal may be laudable, but in my  view,  its
vision  fails.   As  I  see  it, the courts  action  is  judicial
legislation,  pure  and simple. I would hold  that  the  original
initiative means what it says.51
II.  OVERBREADTH
          Having  reshaped  section .320  to  fit  constitutional
limits,  the  court all but ignores the overbreadth  claims  that
address  the initiatives other provisions; the court dismissively
finds that these claims pose no realistic danger of chilling free
speech  and  can safely be left for later challenges  on  an  as-
applied  basis.  I think that the court is correct in recognizing
that  its reinterpretation of section .320 will ultimately render
many  of  the  initiatives  remaining provisions  superfluous  or
hortatory.   But  it seems wrong to assume that these  provisions
have  been sufficiently disarmed to pose no lasting danger  of  a
chilling  effect.  Because I would hold that the initiative  must
be  struck  in  its  entirety and because the court  declines  to
address  the  remaining overbreadth claims at all,  it  would  be
pointless  to  discuss the claims in detail.  But since  I  think
that  the  courts  resolution of the case should  require  it  to
address  these claims, it seems appropriate to outline my reasons
for  believing  that  these claims warrant the  courts  immediate
attention.
          As  a  preliminary  matter, I would note  that  to  the
extent  that  these claims have become hortatory and superfluous,
their  current status results from the courts decision  that  the
first  sentence of section .320 can properly be severed.   Before
severing an invalid provision and declaring that the remainder of
the  statute  can  stand, the court has  a  duty  to  review  the
statutes  remaining provisions and to determine whether they  are
actually  valid and capable of standing on their own.52   Because
the  court  acknowledges that its ruling on section .320  renders
other provisions of the initiative hortatory and superfluous,  it
should  identify and strike those provisions as an integral  part
of its ruling on severance.
          More  importantly, in their present nebulous state,  at
least  some of these provisions continue to pose the same obvious
danger  of chilling free speech that led the court to strike  the
first  sentence of section .320.  Like landmines left  behind  in
the  aftermath of a war, these provisions will continue to  be  a
clear and present danger until they are identified, examined, and
defused.
          For  example,  in the absence of any further  provision
requiring the exclusive use of English, section .340(a)s list  of
exceptions  would at first blush seem meaningless and  presumably
harmless.  Yet as long as they continue to stand as part  of  the
literal  law,  these exceptions can hardly be counted  on  to  be
harmless.   As  already  mentioned,  even  in  section   .320(a)s
absence, section .340(a) is capable of being read to stand on its
own  as  an  exclusive list of circumstances in  which  languages
other than English may be used by the government.  While we might
be able to count on courts to understand that todays ruling makes
these  provisions superfluous, many members of the  public   both
within government service and outside of it  will not share  that
understanding and may conform their conduct to the literal  terms
of this statutory language.
              Section  .340(b)  creates  a  separate  problem  by
allowing  members  of the public to communicate  with  government
officials  in  languages other than English, but  only  if  their
          communications can be translated into English:
          An individual may provide testimony or make a
          statement  to  the government in  a  language
          other than English, if the individual is  not
          an officer or employee of the government, and
          if  the  testimony or statement is translated
          into  English and included in the records  of
          the government.
Though  originally  designed  as a narrow  exception  that  would
override  section .320(b)s English-only requirement  by  allowing
English  to  be  used if a translator could be  found,  now  this
subsection  will  surely  be read and applied  as  a  stand-alone
provision   that  requires  non-English  communications   to   be
translated even though the rule that justified the exception  has
been   struck.    As  a  logical  matter,  the  exception  should
disappear  with the rule; yet todays opinion seems  to  recognize
section .340 as continuing to exist.
          Section  .350 vastly compounds the problem  created  by
the holdover status of subsection .340(b):
               Sec.  44.12.350.  Public accountability.
          All   costs   related  to  the   preparation,
          translation,   printing,  or   recording   of
          documents,   records,  brochures,  pamphlets,
          flyers, or other material in languages  other
          than  English shall be defined as a  separate
          line item in the budget of every governmental
          agency, department, or office.
Though  styled  as  an  accountability  provision,  this  section
actually erects an appropriation requirement.  By demanding  that
the  costs  of preparing all non-English government  writings  be
accounted  for  by  separate line item in  the  budget  of  every
governmental agency, subsection .350(b) ultimately means that  no
government  writings  can be prepared in a  language  other  than
English  unless  line-item funds have been appropriated  for  the
preparation.    Thus,  although the  court  now  recognizes  that
section  .320  creates a permissible category  of  unofficial  or
informal documents that includes writings like a note in  Spanish
from  a teacher, a letter from a city councillor in Yupik,  or  a
fisheries notice to be posted in English and Yupik, section  .350
may  well  require  all  government workers,  before  sending  or
accepting  such notes, letters, and notices, to locate the  line-
item  money.  And if the money is not there, those writings would
not  be permitted.  Although this provision certainly might  have
fit  well  with the initiatives original role as an  English-only
law,  it  has  no  legitimate justification in the  reconstructed
version and can only invite mischief.
          The  lingering  concerns posed by these provisions  are
further exacerbated by the overarching language of section .380:
               Sec. 44.12.380.  Private cause of action
          authorized.   Any  person  may   bring   suit
          against  any governmental entity  to  enforce
          the provisions of AS 44.12.300-44.12.390.
          
In effect, this provision gives every person in Alaska a wildcard
to  sue   or to threaten suit  for enforcement of the initiatives
requirements.
          Although  this private-prosecution function might  have
played  a  vital  role in ensuring that the original  initiatives
broad  requirements  were enforced, now that  the  initiative  no
longer  has  any  hard and fast requirements, it  seems  fair  to
wonder  what  will  be left to enforce.  The question  is  hardly
moot: there is no reason to expect  that Alaskans who hold strong
views  favoring  the  adoption of English as  our  only  official
language  will  hesitate to sue, or to threaten  suit,  based  on
their  personal  impressions of what  the  initiative  means  and
requires.   In  many cases, these impressions  will  now  reflect
misperceptions stemming from the initiatives unsettled meaning in
its  just-adopted form.  Because the initiatives newly proclaimed
meaning creates no obvious rights that would be capable of  being
privately enforced, the only suits likely to be threatened  under
section  .380  are suits triggered by the problematic  provisions
described  above.  The only effect section .380 seems capable  of
producing, then, is a chilling effect.  And since the  threat  of
suit  can  be  as effective in chilling free speech as  the  suit
itself,  courts are not likely to see any sign of  this  chilling
effect.
          We  have  previously  held that [a] statute  regulating
speech   is   overbroad,   and   thus   unconstitutional,    when
constitutionally protected conduct as well as conduct  which  the
state can legitimately regulate are included within the ambit  of
[a]  statutes prohibition. 53  We have further held that a  court
must  engage in an overbreadth analysis when an individual  whose
own  speech  may be prohibited challenges a statute on  its  face
because it also threatens others not before the court  those  who
desire  to  engage in legally protected expression  but  who  may
refrain  from doing so rather than risk prosecution or  undertake
to  have  the law declared partially invalid. 54  The  challenger
must  show  that  there is  a realistic danger that  the  statute
itself  will significantly compromise recognized First  Amendment
protections of parties not before the Court for it to be facially
challenged on overbreadth grounds. 55
           In  considering  whether the combined  effect  of  the
provisions discussed above creates a realistic danger  that  free
speech  will  be chilled, we must start by bearing  in  mind  the
importance of our right to speak freely and by recognizing  that,
when  First  Amendment  freedoms are at stake,  [t]he  threat  of
sanctions  may  deter their exercise almost as  potently  as  the
actual application of sanctions.56  We must likewise consider the
importance of the particular speech rights threatened, the  scope
of  the threat, the class of persons affected, and the likelihood
that the presence of a chilling effect might remain undetected.
          Here,  the  right threatened  the right to  communicate
with government  is among the most vital of potential free-speech
rights;  the  threatened deprivation could result in  a  lack  of
access  to government services; and the two classes at  risk  are
non-English-speaking  citizens and government  workers   both  of
which   have  a  membership  that  is  extremely  vulnerable   to
deterrence  by the threat and would be particularly  unlikely  to
          seek redress if their rights were improperly chilled.
          Considering  these  factors, as well  as  the  systemic
nature  of the problem, I think that there are compelling reasons
to  believe that a realistic danger of a chilling effect does  in
fact  exist.  I would therefore conclude that, unless  the  court
strikes the initiative in its entirety, it must review and decide
the remaining overbreadth claims now.
III. CONCLUSION
          Because  the  initiative was carefully crafted  in  its
entirety  to  prohibit or impermissibly chill the right  to  free
speech,  I  would hold that it must be declared  invalid  in  its
entirety.   Although I agree with the courts ruling that  section
.320  is  unconstitutional, I dissent from its decision that  the
rest of the initiative can be saved.
_______________________________
     1     The  wording of the initiative summary was the subject
of  a  1998 lawsuit by ACL against then-Lieutenant Governor  Fran
Ulmer.   See  Alaskans for a Common Language,  Inc. v.  Kritz,  3
P.3d  906,  910 (Alaska 2000)  (describing history of passage  of
OEI).  Ulmer prevailed.  Id.  The quoted excerpt reflects in part
the  information  provided  to the voters  at  the  time  of  the
election.

     2     Alaska  Const.  art.  XI,  1.  The  law-making  powers
granted  to  the  people  are similar to those  assigned  to  the
legislature.  See Alaska Const. art. XII,  11.

     3    Alaskans for a Common Language, Inc., 3 P.3d at 910.

     4    Id. at 910 & n.8.

     5    Id. at 913-14.

     6    Id. at 916.

     7    Yniguez v. Arizonans for Official English, 69 F.3d 920,
936 (9th Cir. 1995) (en banc), vacated as moot sub nom. Arizonans
for Official English v. Arizona, 520 U.S. 43 (1997).

     8     Alaska  Const. art. I,  5 provides: Every  person  may
freely   speak,  write,  and  publish  on  all  subjects,   being
responsible for the abuse of that right.  The court also observed
that the OEI would likely be found to violate the First Amendment
of  the U.S. Constitution, but determined it to be unnecessary to
reach  this  issue in light of its decision that  the  initiative
violated  the  rights guaranteed to elected officials  under  the
Alaska Constitution.

     9     State,  Dept  of Revenue v. Andrade, 23  P.3d  58,  65
(Alaska 2001).

     10     Alaska Gen. Alarm, Inc. v. Grinnell, 1 P.3d  98,  100
(Alaska  2000)  (quoting  Guin v. Ha, 591  P.2d  1281,  1284  n.6
(Alaska 1979)).

     11    Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1269
(Alaska 2001).

     12    Id. (quoting Wright v. State, 824 P.2d 718, 720 (Alaska
1992)).

     13    Id.

     14    Ala. Const. amend. 509; Ark. Code Ann.  1-4-117 (1987);
Cal. Const. art. III,  6; Colo. Const. art. II,  30a; Fla. Const.
art. II,  9; Ga. Code Ann.  50-3-100 (1996); Haw. Const. art. XV,
4  (also designating Hawaiian as official language); 5 Ill. Comp.
Stat.  460/20 (1991); Ind. Code  1-2-10-1 (1984); Iowa Code  Ann.
1.18  (West 2002);  Ky. Rev. Stat. Ann.  2.013 (1984); Miss. Code
Ann   3-3-31  (1987); Mo. Ann. Stat.  1.028 (West 1999);    Mont.
Code.  Ann.  1-1-510 (1995); Neb. Const. Art. 1,  27;  N.H.  Rev.
Stat.  Ann.   3-C:1 (1995); N.C. Gen. Stat.  145-12 (1987);  N.D.
Cent.  Code   54-02-13 (1987);  S.C. Code Ann.   1-1-696  (1987);
S.D.  Codified Laws Ann.  1-27-20 to 1-27-26 (1995);  Tenn.  Code
Ann.   4-1-404 (1984); Utah Code Ann.  63-13-1.5 (2000); Va. Code
Ann.  7.1-42 (1996); Wyo. Stat. Ann.  8-6-101 (1996).

     15     See, e.g., Ark. Code. Ann.  1-4-117 (1987); Ind. Code
1-2-10-1  (1984); Ky. Rev. Stat. Ann.  2.013 (1984);  N.C.   Gen.
Stat.  145-12 (1987); N.D. Cent. Code  54-02-13 (1987); S.C. Code
Ann.  1-1-696 (1987).

     16     See,  e.g., N.H. Rev. Stat. Ann.  3-C:1 (1995);  S.D.
Codified  Laws  Ann.  1-27-20 (1995); Tenn.  Code  Ann.   4-1-404
(1984).

     17    See, e.g., Wyo. Stat. Ann.  8-6-101 (1996).

     18     See  Ariz.  Const. art. XXVIII.  This  provision  was
struck down first by the Ninth Circuit, Yniguez v. Arizonans  for
Official  English, 69 F.3d 920, 924 (9th Cir.  1995)  (en  banc),
vacated  as  moot  sub  nom. Arizonans for  Official  English  v.
Arizona,  520  U.S.  43 (1997), and then by the  Arizona  Supreme
Court.  Ruiz v. Hull, 957 P.2d 984, 987 (Ariz. 1998).

     19    See In re Initiative Petition No. 366, 46 P.3d 123, 129-
30  (Okla. 2002) (text of proposed initiative).  The petition was
invalidated  by the Oklahoma Supreme Court prior to placement  on
the  ballot because the court determined that the petition  would
be unable to survive a constitutional attack.  Id. at 125.

     20    See Ariz. Const. art. XXVIII; In re Initiative Petition
No.  366,  46  P.3d at 129-30 (text of proposed  initiative);  AS
44.12.300-.390.

     21    Ruiz, 957 P.2d at 994 (quoting Michele Arington, Note,
English  Only  Laws  and Direct Legislation: The  Battle  in  the
States  Over  Language Minority Rights, 7 J.L. &  Pol.  325,  337
(1991)).

     22    Id. at 997-98, 1002.

     23     Yniguez,  69 F.3d at 932 (quoting Ariz.  Const.  art.
XXVIII,  2).

     24    In re Initiative Petition No. 366, 46 P.3d at 129.

     25    Id. at 127.

     26     State,  Dept of Revenue v. Andrade, 23  P.3d  58,  71
(Alaska  2001)  (quoting  Kimoktoak v. State,  584  P.2d  25,  31
(Alaska   1978)   (citations  omitted)   (explaining   that   the
legislature, like the courts, is pledged to support the state and
federal  constitutions  and  that the courts,  therefore,  should
presume  that the legislature sought to act within constitutional
limits)).

     27    Id. (quoting Baxley v. State, 958 P.2d 422, 428 (Alaska
1998)).

     28     State  v. Campbell, 536 P.2d 105, 111 (Alaska  1975),
overruled on other grounds by Kimoktoak v. State, 584 P.2d 25, 31
(Alaska  1978); see also Gottschalk v. State, 575 P.2d  289,  296
(Alaska 1978) (to imply into statute what is not apparent on  its
face  would  be  stepping  over the line  of  interpretation  and
engaging in legislation).

     29     See,  e.g., Falcon v. Alaska Pub. Offices Commn,  570
P.2d 469, 472 n.6 (to construe initiative passed by voters, court
will  look to published arguments for indication of voter intent)
(citing  State v. Lewis, 559 P.2d 630, 637-38 (Alaska 1977)).

     30     State  v.  Alex, 646 P.2d 203, 208 n.4 (Alaska  1982)
(discussing origin of Alaskas sliding scale approach to statutory
interpretation, in which plain language of statute is  considered
in light of any accompanying indications of legislative intent).

     31     Beck  v. Dept of Transp. & Pub. Facilities, 837  P.2d
105, 117 (Alaska 1992).  In addition, in situations in which  the
legislative purpose can be ascertained with reasonable certainty,
the maxims of construction . . . are secondary to the rule that a
statute should be construed in light of its purpose.  Id.

     32    Id. at 116-17.

     33     State v. Alaska State Employees Assn/AFSCME Local 52,
923  P.2d  18,  23  (Alaska 1996) (quoting  Univ.  of  Alaska  v.
Geistauts, 666 P.2d 424, 428 n.5 (Alaska 1983)).

     34    See Falcon, 570 P.2d at 472 n.6 (citing Lewis, 559 P.2d
at 637-38 (Alaska).

     35     See Alaska State Employees Assn/AFSCME Local 52,  923
P.2d  at  24  (refusing  to  accord  weight  to  stated  personal
intentions of legislation sponsor that did not reflect content of
law as enacted).

     36     Cf.  Hickel v. Halford, 872 P.2d 171, 177-81  (Alaska
1994)  (attempting to construe term administrative proceeding  as
used  in  amendment to Alaska Constitution by looking at language
of  provision,  purpose of  amendment, statement  in  support  of
amendment  published  in voter pamphlet,  and  language  used  in
related statutory provisions).

     37    Cf. Falcon, 570 P.2d at 472 n.6.

     38     ACL  objected to the language of the summary, arguing
that   it   incorrectly  presented  the  initiatives   enumerated
exceptions as exclusive, and that it did not explicitly  indicate
that the use of Native languages would be protected by the Native
American  Languages  Act  (NALA).   See  Alaskans  for  a  Common
Language  v.  Kritz, 3 P.3d 906, 909 (Alaska  2000).   Lieutenant
Governor  Ulmer  amended the language describing the  exceptions,
but her decision not to reference NALA was upheld by the superior
court.  Id. at 910.

     39    957 P.2d 984 (Ariz. 1998).

     40    Id. at 992.

     41     Unlike the OEI, the Arizona amendment applied to  the
judicial  branch  as well as the legislature and  the  executive.
See Ariz. Const., art. XXVIII,  1(3)(a)(i).

     42    Ariz. Const. art. XXVIII,  1(2).

     43    Ariz. Const. art. XXVIII,  1(3)(a)(iv).

     44     Ariz.  Const. art. XXVIII,  3(1) provides in relevant
part:

          Except as provided in subsection (2):
          (a) This State and all political subdivisions
          of  this State shall act in English and in no
          other language.
          . . . .
          (c)  No governmental document shall be valid,
          effective or enforceable unless it is in  the
          English language.
          
     45    Ruiz v. Hull, 957 P.2d 984, 992 (Ariz. 1998).

     46    Id. at 993.

     47    Id. (Emphases in original.)

     48    46 P.3d 123 (Okla. 2002).

     49    Id. at 127.

     50    Id.

     51    Id.

     52    State, Alaska Hous. Fin. Corp. v. Employees Assn/AFSCME
Local 52, 923 P.2d 18, 23 (Alaska 1996).

     53     State,  Dept of Revenue v. Andrade, 23  P.3d  58,  71
(Alaska 2001).

     54    Bonjour v. Bonjour, 592 P.2d 1233, 1237 (Alaska 1979).
As we observed in that case:
          Statutes  validly enacted by the  legislature
          come  to  this  court with a  presumption  of
          constitutionality.   If constitutional issues
          are  raised,  we have a duty to construe  the
          statute, where it is reasonable to do so,  to
          avoid  dangers of unconstitutionality. Larson
          v.  State,  564 P.2d 365, 372 (Alaska  1977);
          Hoffman  v. State, 404 P.2d 644, 646  (Alaska
          1965).  Where  a  narrow  construction  of  a
          statute  will avoid constitutional  infirmity
          without   doing  violence  to  the   manifest
          legislative  intent, we  will  interpret  the
          statute accordingly. Gottschalk v. State, 575
          P.2d   289,  296  (Alaska  1978);  State   v.
          Campbell, 536 P.2d 105, 110-11 (Alaska 1975);
          State  v.  Martin, 532 P.2d 316, 321  (Alaska
          1975).   If  a statute is susceptible  of  no
          reasonable       construction        avoiding
          constitutional problems, this court is  under
          a   duty  to  nullify  the  statute  or,   if
          possible,  the  particular  provision   found
          offensive to the constitution.  Campbell, 536
          P.2d  at  110-11.  The separation  of  powers
          doctrine    prohibits   us   from    enacting
          legislation or redrafting patently  defective
          statutes. Id. at 111; Gottschalk, 575 P.2d at
          296.
          
     55    Gottschalk , 575 P.2d at 296 (court cannot step[] over
the line of interpretation and engag[e] in legislation).

     56    U.S. Const. amend. I.

     57    Alaska Const. art. I,  5.

     58    Alaska Const. art. I,  6.

     59    Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982).

     60    Messerli v. State, 626 P.2d 81, 83 (Alaska 1980).

     61     Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001);
Bd.  of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S.
217 (2000); Rosenberger v. Rector & Visitors of the Univ. of Va.,
515 U.S. 819 (1995); Rust v. Sullivan, 500 U.S. 173 (1991).

     62     E.g., Rosenberger, 515 U.S. at 832 (citing Widmar  v.
Vincent, 454 U.S. 263, 276 (1981) and Rust, 500 U.S. at 194).

     63     E.g., Rust, 500 U.S. at 193 (upholding restriction on
federal funding for family planning services).

     64     Southworth, 529 U.S. at 229; Rosenberger 515 U.S.  at
833.

     65     Keyishian v. Bd. of Regents of the Univ. of State  of
New York, 385 U.S. 589, 603 (1967).

     66    AS 44.12.330.

     67     See,  e.g., Rosenberger v. Rector & Visitors  of  the
Univ.  of  Va.,  515  U.S. 819 (1995) (when government  disburses
funds  to private entities to convey its message, it may regulate
its  own  message, but governmental speech was not implicated  by
state   universitys   decision  to   fund   independent   student
newspapers,  so  state could not refuse to  fund  newspaper  with
religious  content);  Rust  v.  Sullivan,  500  U.S.  173  (1991)
(federal  government may prevent federally-funded family planning
programs  from  discussing abortion with  clients  if  government
wishes  to promote pregnancy prevention and childbirth as opposed
to abortion).

     68    Rust, 500 U.S. at 193.

     69    Bd. of Regents of the Univ. of Wis. Sys. v. Southworth,
529 U.S. 217 (2000).

     70    Rust, 500 U.S. at 193.

     71     Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 540-42
(2001).

     72     This is especially true of local governments, because
they  are not merely mouthpieces of the state.  See Alaska Const.
art.  X,   1  (providing  for maximum local  self-government  and
liberal  construction  of  powers of  local  government);  Alaska
Const.   art.  X,   11  (home  rule  borough  may  exercise   all
legislative  powers not prohibited by law or by charter).   While
Alaska  at one time adhered to the local activity rule, in  which
the  ordinance of a municipality could conceivably trump a  state
statute if the subject matter was traditionally considered one of
purely  local concern, see Municipality of Anchorage v.  Repasky,
34  P.3d 302, 321 (Alaska 2001) (Bryner, J., dissenting); Chugach
Elec.  Assoc.  v.  City of Anchorage, 476 P.2d 115,  122  (Alaska
1970),  even today, local ordinances that conflict with  statutes
will  be upheld unless they are substantially irreconcilable with
state  law.  Repasky, 34 P.3d at 321-22 (Bryner, J., dissenting).
These  principles  indicate that while the  state  government  is
unquestionably superior, local governments often speak  on  their
own behalf and are not merely branch offices that speak on behalf
of the state when so ordered.

     73     First Natl Bank of Boston v. Bellotti, 435 U.S.  765,
783  (1978).  See also Va. State Bd. of Pharmacy v. Va.  Citizens
Consumer  Council,  Inc.,  425 U.S.  748,  756  (1976)  (where  a
[willing]  speaker  exists, the protection  afforded  is  to  the
communication, to its source and to its recipients both).

     74    Stanley v. Georgia, 394 U.S. 557, 564 (1969).

     75    Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26
v. Pico, 457 U.S. 853, 867 (1982) (emphasis in original).

     76    Yniguez v. Arizonans for Official English, 69 F.3d 920,
940-41  (9th  Cir.  1995) (en banc), vacated  as  moot  sub  nom.
Arizonans  for Official English v. Arizona, 520 U.S.  43  (1997);
Ruiz  v.  Hull, 957 P.2d 984, 997 (Ariz. 1998); In re  Initiative
Petition No. 366, 46 P.3d 123, 127 (Okla. 2002).

     77     Yniguez, 69 F.3d at 940-42; Ruiz, 957 P.2d at 997-98;
Petition No. 366, 46 P.3d at 127-28.

     78    Ruiz, 957 P.2d at 997-98; Petition No. 366, 46 P.3d at
127-28.

     79    Yniguez, 69 F.3d at 936-37; Ruiz, 957 P.2d at 1002-03;
Petition No. 366, 46 P.3d at 129.

     80    Yniguez, 69 F.3d at 936-37.

     81     U.S.  Const.  amend. I (Congress shall  make  no  law
.  .  . abridging . . . the right of the people . . . to petition
the Government for a redress of grievances.);  Alaska Const. art.
I,    6 (The right of the people . . . to petition the government
shall never be abridged.).

     82    A person has a right to hear speech only if there is a
willing  speaker.  See Va. State Bd. of Pharmacy v. Va.  Citizens
Consumer Council, Inc., 425 U.S. 748, 756 (1976).

     83    Id.

     84     For instance, Manuel Macedo, a middle school teacher,
often  communicates  in  Spanish  with  his  students  and  their
parents; James Gilman, a citizen, receives information from state
workers  regarding  benefit programs in  Yupik;  Leo  and  Ruthie
Beaver  receive information about their daughters education  from
her  teachers in Yupik; and Minnie Mark, a city coordinator/clerk
for  the  City  of Quinhagak, translates for city  officials  and
members  of  the  public doing business with  the  city  both  in
individual  encounters  and during public  meetings.   Similarly,
Peter  Lockuk,  Sr.,  a  land planner for  the  City  of  Togiak,
interacts with citizens in Yupik, and Kirk Kenrud, the supervisor
of the citys Shop & Road Maintenance Department, explains repairs
and prepares invoices for non-English-speaking citizens in Yupik.

     85     Numerous federal and state courts have addressed this
issue  and  none  has held that such a policy is constitutionally
required.   See, e.g., Toure v. U.S., 24 F.3d 444, 446  (2d  Cir.
1994);  Soberal-Perez v. Heckler, 717 F.2d  36,  41-44  (2d  Cir.
1983);  Frontera v. Sindell, 522 F.2d 1215, 1220 (6th Cir. 1975);
Carmona v. Sheffield, 475 P.2d 738, 739 (9th Cir. 1973); Jara  v.
Mun.  Court  for  the San Antonio Judicial Dist. of  Los  Angeles
County, 578 P.2d 94, 96-97 (Cal. 1978); Guerrero v. Carleson, 512
P.2d 833, 838-39 (Cal. 1973).

     86     69 F.3d 920, 957 (9th Cir. 1995) (en banc) (Brunetti,
J.,  concurring) (emphasis in original), vacated as moot sub nom.
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).

     87    385 U.S. 116 (1966).

     88    Id. at 135-36.

     89    Id. at 136-37.

     90     Thoma  v.  Hickel, 947 P.2d 816,  821  (Alaska  1997)
(Matthews,  J.  &  Eastaugh, J., concurring)  (governor  entitled
under  First  Amendment  to  respond  to  critical  speech),  826
(Carpeneti,  J.,  dissenting in part, with whom  Rabinowitz,  J.,
joined)  (governor entitled under First Amendment to  respond  to
critical  speech,  but not to access confidential  public  safety
criminal database to gather information about critic).

     91    Yniguez v. Arizonans for Official English, 69 F.3d 920,
940-41  (9th  Cir.  1995) (en banc), vacated  as  moot  sub  nom.
Arizonans  for Official English v. Arizona, 520 U.S.  43  (1997);
Ruiz v. Hull, 957 P.2d 984, 998 (Ariz. 1998).

     92     Alaska Const. art. II,  6 provides that [l]egislators
may  not  be  held  to answer before any other tribunal  for  any
statement made in the exercise of their legislative duties  while
the  legislature is in session.  This protects neither statements
made  while  the legislature is not in session nor communications
with  constituents  not immediately connected  with  legislation.
See  Schultz  v.  Sundberg, 759 F.2d 714,  717  (9th  Cir.  1985)
(Alaska  Constitution  requires  protected  activity  to  (1)  be
integral  part of committee or house proceedings and (2)  address
proposed  legislation  or  some other topic  within  legislatures
constitutional jurisdiction).

     93    385 U.S. 116,  135-36 (1966).

     94    See Thoma, 947 P.2d at 821, 826.

     95    725 P.2d 695, 700 (Alaska 1986).

     96    391 U.S. 563, 568 (1968).

     97     State  v.  Haley,  687 P.2d 305,  311  (Alaska  1984)
(quoting Pickering, 391 U.S. at 568).

     98     Wickwire, 725 P.2d at 702 (citing Connick v.  Meyers,
461 U.S. 138, 147 (1983)).

     99     This  section  provides that: the OEI  shall  not  be
construed in any way that infringes upon the rights of persons to
use  languages  other  than English in  activities  or  functions
conducted  solely in the private sector, and the  government  may
not  restrict  the  use of language other than  English  in  such
private activities or functions.

     100    City & Borough of Sitka v. Swanner, 649 P.2d 940, 943
(Alaska 1982) (construing Pickering, 391 U.S. at 568).

     101    Id.

     102    461 U.S. 138 (1983).

     103    Id. at 154.

     104    Wickwire v. State, 725 P.2d 695, 703 (Alaska 1986).

     105    Yniguez v. Arizonans for Official English, 69 F.3d 920,
924-25,  940 (9th Cir. 1995) (en banc), vacated as moot sub  nom.
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).

     106    Id. at 939-40.

     107    Id. at 940.

     108    We note that the dissent in Yniguez conceded that the
English-only law in Arizona makes it harder for many Arizonans to
receive  government  services.  A successful challenge  might  be
raised  by  those whose ability to deal with their government  is
thereby impaired.  Id. at 963 (Kozinski, J., dissenting).

     109     See, e.g., Marks v. City of Anchorage, 500 P.2d 644,
647  (Alaska  1972)  (listing instances in which  speech  can  be
restricted on basis of circumstances involved and type of  speech
at  issue, for example, fighting words, obscenity, and speech  in
courtroom while court is in session).

     110     Erwin  Chemerinsky, Content Neutrality as a  Central
Problem  of  Freedom  of Speech: Problems in the  Supreme  Courts
Application,  74  So.  Cal. L. Rev. 49, 55  (2000).   See  Turner
Broadcast  Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994)(At  the
heart  of the First Amendment lies the principle that each person
should  decide  for  himself or herself  the  ideas  and  beliefs
deserving expression, consideration and adherence.  Consequently,
the First Amendment . . . does not countenance government control
over  the  content of messages expressed by private individuals.)
(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992)).
See  also Texas v. Johnson, 491 U.S. 397, 414 (1989) (Nor may the
government,  we  have  held,  compel conduct  that  would  evince
respect  for the flag. To sustain the compulsory flag  salute  we
are  required  to  say  that a Bill of Rights  which  guards  the
individuals right to speak his own mind, left it open  to  public
authorities  to compel him to utter what is not in his  mind.  ).
(Citation omitted.)

     111    R.A.V., 505 U.S. at 382.

     112     Vogler v. Miller, 651 P.2d 1, 5 (Alaska 1982).   See
also  Capital Square Review and Advisory Bd. v. Pinette, 515 U.S.
753,  761  (1995) (reciting federal rule that state may  regulate
expressive  content only if such a restriction is necessary,  and
narrowly  drawn, to serve a compelling state interest)  (emphasis
in original).

     113     Clark v. Comty. for Creative Non-Violence, 468  U.S.
288, 293 (1984).

     114    See, e.g., Org. for a Better Austin v. Keefe, 402 U.S.
415, 419 (1971).

     115    State v. Haley, 687 P.2d 305, 315 (Alaska 1984) (citing
Emerson,  The  Doctrine of Prior Restraint,  20  Law  &  Contemp.
Probs. at 648 (1955)).

     116    Id.

     117     U.S. v. Natl Treasury Employees Union, 513 U.S. 454,
467-68 & n.11 (1995); Haley, 687 P.2d at 315.

     118    Yniguez v. Arizonans for Official English, 69 F.3d 920,
936 (9th Cir. 1995) (en banc), vacated as moot sub nom. Arizonans
for Official English v. Arizona, 520 U.S. 43 (1997).

     119    See, e.g., Boos v. Berry, 485 U.S. 312 (1988).

     120    See, e.g., U.S. v. Playboy Entmt Group, Inc., 529 U.S.
803 (2000).

     121    Ruiz v. Hull, 957 P.2d 984, 998 (Ariz. 1998).

     122    Id. at 999.

     123    Virginia v. Hicks, 539 U.S. 113, 119 (2003).

     124    Ruiz, 957 P.2d at 999 (quoting 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 501 (1996)).

     125     Police Dept of Chicago v. Mosley, 408 U.S.  92,  101
(1972)  (statutes affecting First Amendment interests  [must  be]
narrowly  tailored  to their legitimate objectives);  cf.  State,
Dept  of  Health & Soc. Servs. v. Planned Parenthood  of  Alaska,
Inc., 28 P.3d 904, 909 (Alaska 2001) (if the objective degree  to
which  the  challenged legislation tends to  deter  [exercise  of
constitutional  rights]  is significant,  the  regulation  cannot
survive  constitutional challenge unless it serves  a  compelling
state interest) (citation ommitted).

     126    Mosley, 408 U.S. at 101; Planned Parenthood, 28 P.3d at
909.

     127    Because we characterize the OEI as a direct prohibition
on speech, it is unnecessary to consider the question whether the
law  also acts as a prior restraint on speech.  We note that  the
superior court did not reach this issue.

     128    Grutter v. Bollinger, 539 U.S. 306 (2003).

     129    Ashcroft v. Am. Civil Liberties Union, 124 S. Ct. 2783
(2004).

     130    McConnell v. Fed. Elections Commn, 540 U.S. 93 (2003).

     131     Treacy  v. Municipality of Anchorage,  91  P.3d  252
(Alaska 2004).

     132    Larson v. Cooper, 90 P.3d 125 (Alaska 2004).

     133     State v. Alaska Civil Liberties Union, 978 P.2d  597
(Alaska 1999).

     134    See, e.g., Yniguez v. Arizonans for Official English,
69  F.3d 920, 923 (9th Cir. 1995) (en banc), vacated as moot  sub
nom.  Arizonans  for  Official English v. Arizona,  520  U.S.  43
(1997).

     135     See,  e.g., Ruiz v. Hull, 957 P.2d 984,  990  (Ariz.
1998).

     136    Id.

     137    Id.

     138    See id. (discussing naturalization legislation, Equal
Education  Opportunity Act, and Immigration  Reform  and  Control
Act).

     139    Grutter v. Bollinger, 539 U.S. 306, 332 (2003).

     140    AS 44.12.300.

     141    E.g., U.S. v. Playboy Entmt Group, Inc., 529 U.S. 803,
804  (2000); State v. Alaska Civil Liberties Union, 978 P.2d 597,
603 (Alaska 1999).

     142     Grutter, 539 U.S. at 333 (quoting Shaw v. Hunt,  517
U.S. 899, 908 (1996)).

     143    AS 44.12.300.

     144    Learning English empowers people to better jobs and to
integrate  into  Alaskan society. . . .  We need to  help  people
learn  English,  not discourage them.  Statement  in  Support  of
Ballot Measure No. 6.

     145     [T]his bill will prevent the increased bureaucracy and
costs   due  to  offering  documents  and  services  in  multiple
languages.  .  . .  By making English the official  language,  we
make sure that Alaska will not end up like California, where they
offer  drivers  license  exams in  33  languages.   Statement  in
Support of Ballot Measure No. 6.

     146    Amicus the Linguistic Society argues that many of those
who  are  not proficient in English understand the advantages  of
learning  English, and they participate in classes when they  are
available.

     147    262 U.S. 390 (1923).

     148     Id.  at  403  (striking down state  law  prohibiting
teaching  of  foreign languages).  While the Court supported  the
laws  goals of promoting civic development and ensuring that  the
English  language should become the mother tongue of  the  states
citizens, it struck down the law as an unconstitutional means  to
achieve those goals.  Id. at 400-03.

     149    Id. at 401.

     150    We were particularly concerned with the first sentence
of  AS 44.12.320, which states that [t]he English language is the
language  to  be  used by all public agencies in  all  government
functions and actions.

     151     McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska
1988).

     152    AS 44.12.390.  See supra at 14-16.

     153    532 P.2d 700, 713 (Alaska 1975).

     154    Id. at 702.

     155    Id. at 713 (quoting Dorchy v. Kansas, 264 U.S. 286, 290
(1924)).

     156    762 P.2d 81, 94-95 (Alaska 1988).

     157    84 P.3d 989 (Alaska 2004).

     158     McAlpine, 762 P.2d at 82.  Alaska Action Center,  84
P.3d at 990.

     159     Alaska  Action  Center, 84  P.3d   at  995  (quoting
McAlpine, 762 P.2d at 94-95).

     160     There  is, however, one slight modification  of  the
Lynden  Transport  test that must be made in applying  it  to  an
approved initiative.  Lynden Transports second part asks whether,
following  severance, the legislature intended the  provision  to
stand.  Lynden Transp., Inc. v. State, 532 P.2d 700, 713  (Alaska
1975).     The   McAlpine   test   asks   whether,   after    the
unconstitutional  provision of an initiative is  removed,  it  is
evident  that  the  sponsors  and subscribers  would  prefer  the
measure to stand as altered, rather than to be invalidated in its
entirety. McAlpine, 762 P.2d at 95.  This question is appropriate
for pre-election severance because the parties with a stake in an
initiative prior to an election are the initiatives sponsors  and
subscribers.   As  McAlpine  notes,  direct  democracy  would  be
seriously  impeded  if  sponsors and  subscribers  could  not  be
confident  that their proposals would go before the voters.   Id.
at 92-93.   However, after an initiative is enacted, the relevant
intent  is  that  of the voters rather than the  sponsors  and/or
subscribers.  Thus, for the second prong of the Lynden  Transport
test,  we  will  look  to the intent of the voters  to  determine
whether the severed statute can stand on its own.

     161     Santa Barbara Sch. Dist v. Superior Court, 530  P.2d
605, 618 n.7 (Cal. 1975).

     162    Parents Involved in Cmty. Schs. v. Seattle Sch. Dist.,
No.  1,  72  P.3d 151, 168 (Wash. 2003); see also  Portland  Gen.
Elec.  Co. v. Bureau of Labor & Indus., 859 P.2d 1143, 1145-47  &
n.4  (Or. 1993); Abrams v. United States, 531 A.2d 964, 971 (D.C.
1987).

     163    The statute provides:
               Severability.  The  provisions   of   AS
          44.12.300-44.12.390   are   independent   and
          severable,  and  if  any  provision   of   AS
          44.12.300-44.12.390, 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  AS
          44.12.300-44.12.390 shall not be affected and
          shall  be given effect to the fullest  extent
          practicable.
          
     164    532 P.2d at 711-12.

     165    Id. at 711-12 (quoting Carter v. Carter Coal Co., 298
U.S. 238, 312 (1936)) (emphasis added in Lynden Transport).

     166    590 P.2d 437 (Alaska 1979).

     167    Id. at 442.

     168    Id. at 443 n.1 (Rabinowitz, J., dissenting).

     169     Lynden  Transp., Inc. v. State , 532 P.2d  700,  713
(Alaska 1975).

     170     See  McAlpine v. Univ. of Alaska, 762  P.2d  81,  94
(Alaska  1988)  (initiatives must be  used  to  enact  laws,  not
statements of public policy).

     171    Id.

     172     The dissent finds fault with this severance, but its
concerns  are  based on a misperception of what  this  court  has
done.   The  dissent  mischaracterizes  this  courts  action   as
rewrit[ing]  section  .320, (Dissent  at  1)  which  leads  to  a
radically  rewritten  law (Dissent at 4) with  a  newly  declared
meaning.  (Dissent at 4) In truth, the court simply  strikes  the
first  sentence of section .320 and gives to the second  sentence
of that section its plain meaning.

     173    AS 44.12.320.

     174    AS 44.12.330.

     175    AS 44.12.380.

     176    Dissent at 12.

     177     See, e.g., N.H. Rev. Stat. Ann.  3-C:1 (1995);  S.D.
Codified  Laws  Ann.  1-27-20 (1995) ([English] is designated  as
the  language of any official public document or record  and  any
official  public meeting.); Tenn. Code Ann.  4-1-404 (1984)  (All
communications  and publications . . . produced  by  governmental
entities in Tennessee shall be in English.); Wyo. Stat. Ann.  8-6-
101 (1996).

     178    Lynden Transp. Inc. v. State, 532 P.2d 700, 713 (Alaska
1975).

     179    The dissent utterly fails to address the first part of
the  Lynden  Transport test.  Instead, it faults  the  court  for
failing  to focus on the initiatives original intent and purpose.
(Dissent  13)   But  as noted above, the redacted  statute  still
serves the general purpose of the OEI: It promotes English as the
common  unifying language of Alaskans.  The statute, by  its  own
terms,   states   its  purpose  as  promoting,   preserving   and
strengthening  the  use of English in Alaska, AS  44.12.300,  and
there  is  no  doubt that the redacted statute still serves  this
purpose  and in so doing tends to promote English as  the  common
language of the state.

     The  dissent argues that the court takes the second sentence
of  AS  44.12.320 out of context, suggesting that the court fails
to  consider  whether its interpretation [does] violence  to  the
initiatives  original intent and purpose. (Dissent 13;  see  also
id.  at  16  n.40).  But this is clearly not so.  The  initiative
intended to promot[e], preserv[e] and strengthen[] the use of the
English language.  AS 44.12.300.  There can be no doubt that  the
severed  statute,  in  requiring that  English  be  used  in  all
official public documents and records, serves these purposes.
                              
     Finally, the first part of the Lynden Transport test  merely
requires a court to determine if legal effect can be given to the
remaining   provisions.   But  the  dissent,  in   adopting   the
challengers view that the severed provision is the centerpiece of
the initiative, concludes that its deletion somehow impermissibly
changes  the  meaning  of what remains.   (Dissent  at  13)  This
analysis  is wrong, for the remaining statute still promotes  and
strengthens  the  use of English in the state, and  it  goes  far
beyond  the  first part of the Lynden Transport test, which  asks
only whether the remaining provision can be given legal effect.

     180    Lynden Transp., 532 P.2d at 713.

     181    836 P.2d 936, 941 (Alaska 1992).

     182    AS 44.12.390.

     183     In addition to the voters adoption of a severability
clause  in  the  initiative they enacted, Alaska law  contains  a
general savings clause.  Alaska Statute 01.10.030 provides:

               Any  law  .  . . enacted by  the  Alaska
          legislature which lacks a severability clause
          shall be construed as though it contained the
          clause  in  the  following  language  If  any
          provision of this Act . . . is held  invalid,
          the  remainder  . . . shall not  be  affected
          thereby.

     We  have  previously held that the existence of this general

savings   clause  creates  a  weak  presumption   in   favor   of

severability.   Lynden  Transp.,  532  P.2d  at  712.   But   the

presumption  of  severability is stronger  where,  as  here,  the

statute in question contains a severability clause.  Id.



     184    978 P.2d 597 (Alaska 1999).

     185    Id. at 633 (emphasis added).

     186    AS 44.12.390.
     187    See supra at n.178 and accompanying text.

     188     See Lynden Transp., Inc. v. State, 532 P.2d 700, 713
(Alaska 1975).

     189     Indeed, the supplemental briefs of ACL and the state
have  assumed that we would decide the constitutionality of every
section of the act.

     190     See, e.g., State v. Alaska Civil Liberties Union, 978
P.2d 597, 633 (Alaska 1999); State v. Kenaitze Indian Tribe,  894
P.2d  632, 639 (Alaska 1995); State v. Palmer, 882 P.2d 386, 388-
89  (Alaska 1994); Sonneman v. Hickel, 836 P.2d 936, 940  (Alaska
1992);  McAlpine v. Univ. of Alaska, 762 P.2d 81,  94-95  (Alaska
1988);  Lynden Transp., Inc. v. State, 532 P.2d 700, 715  (Alaska
1975).   We  construe  the OEIs specific severability  clause  in
light of this general policy.

     191    AS 44.12.390.

     192     State,  Dept of Revenue v. Andrade, 23 P.3d  58,  71
(Alaska  2001) (citing Baxley v. State, 958 P.2d 422, 428 (Alaska
1998)).

     193     Lynden Transp., 532 P.2d at 711-12.

     194    In light of our discussion of the extent of the English-
only requirement imposed by a redacted section .320, see supra at
25-26,  and given that the current challenge is a facial one  and
thus  there  are limited facts before us, we do not believe  that
the  appellees  have established at this time  that  there  is  a
realistic  danger that sections .340(a)-(b) and .380  will  chill
the free exercise of speech.  See City Council of Los Angeles  v.
Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (concluding there
must  be  realistic danger statute will significantly  compromise
First  Amendment protections of parties not before  court  to  be
facially challenged on overbreadth grounds).

1    AS 44.12.320, .340.

2     Ruiz  v.  Hull,  957  P.2d 984, 994 (Ariz.  1998)  (quoting
Michele Arington, Note, English-Only Laws and Direct Legislation:
The Battle in the States Over Language Minority Rights, 7 J.L.  &
Pol. 325, 337 (1991)).

3      State  v.  Campbell,  536 P.2d  105,  111  (Alaska  1975),
overruled on other grounds by Kimoktoak v. State, 584 P.2d 25, 31
(Alaska 1978).

     4     See  Bonjour v. Bonjour, 592 P.2d 1233,  1237  (Alaska
1979) (citing Larson v. State, 564 P.2d 365, 372 (Alaska 1977)).

     5     State  v.  Blank, 90 P.3d 156, 162 (Alaska 2004);  see
also Bonjour, 592 P.2d at 1237.

     6     Davis v. Michigan Dept of Treasury, 489 U.S. 803,  809
(1989)  (citing  United  States v.  Morton,  467  U.S.  822,  828
(1984)).

     7    Allied Chem. Workers v. Pittsburgh Plate Glass Co., 404
U.S. 157, 185 (1971) (citations omitted).

     8    AS 44.12.310 (emphasis added).

9    AS 44.12.320 (emphasis added).

     10   AS 44.12.340(a).

11    See  Yniguez  v. Arizonans for Official  English,  69  F.3d
920,  936  (9th  Cir. 1995) (en banc), vacated as moot  sub  nom.
Arizonans  for  Official English v. Arizona, 520 U.S.  43,  48-49
(1997);  In  re  Initiative Petition No. 366, 46  P.3d  123,  129
(Okla. 2002).

     12    Gottschalk  v. State, 575 P.2d 289, 296 (Alaska  1978)
(quoting Campbell, 536 P.2d at 111).

     13    Norman  J. Singer, Statutes and Statutory Construction
 44:1, at 549 (6th ed., rev. 2001).

     14    Id.   44:1,  at  549-50 (footnote omitted);  see  also
Gottschalk, 575 P.2d at 296.

     15   Singer, supra note 13,  44:4, at 561-62.

     16    Duryee  v.  United States Dept of the Treasury,  6  F.
Supp.  2d  700,  706 (S.D. Ohio 1995); see also Alaska  Airlines,
Inc. v. Brock, 480 U.S. 678, 685 (1987) (court has duty to ensure
the severed statute will function in a manner consistent with the
intent of the legislature) (emphasis in original).

     17   Singer, supra note 13,  44:3, at 554.

     18   Id.  44:7, at 583.

     19    Lynden  Transp.,  Inc. v. State,  532  P.2d  700,  715
(Alaska 1975).

     20    Id.  at  719  (Rabinowitz, C.J., concurring  in  part,
dissenting in part).

     21    McAlpine v. Univ. of Alaska, 762 P.2d 81,  94  (Alaska
1988); see also Singer, supra note 13,  44:3, at 558-59 (Likewise
the   so-called  spirit  of  an  enactment  is  a  term   meaning
essentially  the legislative intent, although it may be  somewhat
broader,  involving also the purpose of the enactment. (footnotes
omitted)).

     22   McAlpine, 762 P.2d at 95.

     23    Conversely, when approving severance we have sometimes
emphasized  that  the deleted subsection is a minor part  of  the
overall  act.   Sonneman  v. Hickel, 836 P.2d  936,  941  (Alaska
1992).

     24   Lynden Transp., 532 P.2d at 715.

25    See,  e.g.,  Womens Emergency Network  v.  Bush,  323  F.3d
937,  948-49  (11th Cir. 2003) (holding that the unconstitutional
portion  of  a  Florida law authorizing the  states  Choose  Life
special license plate program  which provided that collected fees
would be distributed to organizations that promoted adoption over
abortion   was not severable because the legislative  purpose  of
the program was to promote adoption instead of abortion).

     26    See Campbell, 536 P.2d at 111 (We cannot bootstrap the
wrongful  intent  requirement into the statute by  the  wholesale
implication of other necessary elements.  At some point, it  must
be  assumed that the legislature means what it says and that,  in
fact,  in  this  instance,  it was  trying  to  delineate  a  new
statutory  offense.   There  is nothing,  of  course,  inherently
unconstitutional  about  purposeful omission  of  [a  particular]
requirement.).

     27   Gottschalk, 575 P.2d at 294-95.

     28   Id. at 296.

     29   Id.

30    Id.;  cf.  State  v.  Zarnke, 589  N.W.2d  370,  377  (Wis.
1999) (While when necessary, we have at times severed portions of
a  statutes  language,  and  at other  times  have  read  into  a
deficient  statute  a  constitutional  requirement,  the   States
request  that  we save all of [the challenged law] would  require
this court to combine two distinct saving doctrines, which we are
not inclined to do under the circumstances of this case.).

     31     Alaskas  general  severance  statute,  AS  01.10.030,
provides as follows:

          Any  law  heretofore or hereafter enacted  by
          the   Alaska   legislature  which   lacks   a
          severability  clause shall  be  construed  as
          though   it  contained  the  clause  in   the
          following language: If any provision of  this
          Act, or the application thereof to any person
          or   circumstance   is  held   invalid,   the
          remainder of this Act and the application  to
          other  persons or circumstances shall not  be
          affected thereby.
          
     32    The  initiatives  severability clause,  AS  44.12.390,
states:


The
                              provi
                              sions
                              of AS
                              44.12
                              .300-
                              44.12
                              .390
                              are
                              indep
                              enden
                              t and
                              sever
                              able,
                              and
                              if
                              any
                              provi
                              sion
                              of AS
                              44.12
                              .300-
                              44.12
                              .390,
                              or
                              the
                              appli
                              cabil
                              ity
                              of
                              any
                              provi
                              sion
                              to
                              any
                              perso
                              n  or
                              circu
                              mstan
                              ce,
                              shall
                              be
                              held
                              to be
                              inval
                              id by
                              a
                              court
                              of
                              compe
                              tent
                              juris
                              dicti
                              on,
                              the
                              remai
                              nder
                              of AS
                              44.12
                              .300-
                              44.12
                              .390
                              shall
                              not
                              be
                              affec
                              ted
                              and
                              shall
                              be
                              given
                              effec
                              t  to
                              the
                              fulle
                              st
                              exten
                              t
                              pract
                              icabl
                              e.
                              
     33   Lynden Transp., 532 P.2d at 711-12.

     34   Singer, supra note 13,  44:8, at 589.

     35   Lynden Transp., 532 P.2d at 712-13.

     36   McAlpine, 762 P.2d at 94-95.

     37   Lynden Transp., 532 P.2d at 715.

     38    Id. at 715, 719 (Rabinowitz, C.J., concurring in part,
dissenting in part).

     39   McAlpine, 762 P.2d at 94-95.

40    The  court  protests  that, [i]n truth,  the  court  simply
strikes  the  first sentence of section .320  and  gives  to  the
second  sentence of that section its plain meaning.  This protest
rings  hollow  because it misses the point: as the court  tacitly
acknowledges  in declining to give the entirety of  the  original
version  of  section  .320  the same permissive  meaning  it  now
attributes to the sections second sentence, the second  sentences
plain  meaning in the severed version of the section is a meaning
that  the sentence could not plausibly have been intended to have
in  its  original  context.   The courts  sever  and  reinterpret
approach  is  precisely  the bootstrapping  that  Gottschalk  and
similar  cases forbid.  In effect, the court starts  with  a  law
that  says  No language but English may ever be used.  The  court
severs  some text: No language but English may ever be used.   It
then  gives the remainder  English may be used  its plain meaning
as severed and declares that, because the remainder is capable of
standing on its own and  just like the original version  helps to
promote  English,  the severed version has essentially  the  same
purpose  as the first and was therefore intended by the  original
drafters.   This strikes me as a considerable reach.

     41   Zarnke, 589 N.W.2d at 377.

     42   Gottschalk, 575 P.2d at 296.

     43   Zarnke, 589 N.W.2d at 372.

     44   Id.

     45   Id. at 372-73.

     46   Id. at 373.

     47   Id. at 379.

     48   Id. at 373.

     49   Id. at 379 (emphasis in original) (citation omitted).

     50    Ruiz, 957 P.2d at 994 (quoting Arington, supra note 2,
at 337).

     51    Campbell, 536 P.2d at 111, overruled on other  grounds
by Kimoktoak, 584 P.2d at 31.

52    See,  e.g.,  Singer,  supra  note  13,   44:4,   at  561-62
(remaining portion of severed statute must be valid as a  law  by
itself);  McAlpine,  762  P.2d  at 94-95  (remaining  portion  of
severed statute must be capable of standing on its own).

53     Turney   v.  State,  936  P.2d  533,  539  (Alaska   1997)
(second  alteration  in  original)  (quoting  Marks  v.  City  of
Anchorage, 500 P.2d 644, 646 (Alaska 1972)).

     54   Bd. of Airport Commrs v. Jews for Jesus, Inc., 482 U.S.
569,  574 (1987) (quoting Brockett v. Spokane Arcades, Inc.,  472
U.S. 491, 503 (1985)).

     55    Id.  (quoting City Council of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 801 (1984)).

     56   Marks, 500 P.2d at 647 (citation omitted).

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