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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 (11/02/2007) sp-6185
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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