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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kohlhaas v. State, Office of the Lieutenant Governor (1/15/2010) sp-6450
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| SCOTT KOHLHAAS, | ) |
| ) Supreme Court No. S- 13024 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-07-05750 CI | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, OFFICE OF | ) |
| THE LIEUTENANT GOVERNOR, | ) No. 6450 January 15, 2010 |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Jack W. Smith, Judge.
Appearances: Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for Appellant.
Sarah J. Felix, Assistant Attorney General,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, and
Winfree, Justices. [Matthews, Justice, and
Carpeneti, Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
In 2003 Scott Kohlhaas proposed a ballot initiative
calling for a statewide vote on whether Alaska should secede from
the United States. The lieutenant governor refused to certify
Kohlhaass initiative, and the superior court concluded that his
refusal was proper. Affirming the judgment of the superior
court, we held that the lieutenant governor had correctly
declined to certify Kohlhaass initiative because secession is a
clearly unconstitutional end.
In 2007 Kohlhaas drafted a second initiative on this
topic, this time calling for a statewide vote on whether the
State should seek changes in existing law and constitutional
provisions that would authorize Alaskas secession from the United
States. The lieutenant governor again declined to certify the
initiative for circulation, and the superior court again
concluded that the lieutenant governors denial of certification
was proper, granting the States motion for summary judgment.
Kohlhaas appeals.
Kohlhaass revised initiative seeks either secession
itself or a change in existing constitutional law to allow
secession. Because secession is clearly unconstitutional, and
because the people of Alaska may not effect constitutional change
through the initiative process, Kohlhaass revised initiative is
an improper subject for the initiative process. The lieutenant
governor correctly denied certification of the initiative. We
thus affirm the superior courts judgment.
II. FACTS AND PROCEEDINGS
A. Initiative 03INDP and Kohlhaas I
In April 2003 Scott Kohlhaas submitted an initiative to
the Office of the Lieutenant Governor, accompanied by at least
one hundred qualifying signatures as required by Alaska law.1
The initiative, known as 03INDP, read as follows:
INITIATIVE PETITION:
AN INITIATIVE REQUIRING THE STATE OF ALASKA
TO VOTE ON OBTAINING ALASKAN INDEPENDENCE, IF
LEGALLY POSSIBLE, OR TO SEEK CHANGES IN
EXISTING LAW AND CONSTITUTIONAL PROVISIONS TO
AUTHORIZE, AND THEN OBTAIN, INDEPENDENCE.
Be it enacted by the people of the State of
Alaska:
(1) At the next regular general election,
the following question shall be presented to
the voters of the State of Alaska for
approval or rejection:
Shall the State of Alaska obtain independence
from the United States of America, and become
an independent nation, if such independence
is legally possible, and if such independence
is not legally possible under present law,
shall the State of Alaska seek changes in
existing law and Constitutional provisions to
authorize such independence, and then obtain
independence?
(2) If this question is not answered
affirmatively, then this question shall be
placed before the voters of Alaska every ten
years in the future.
(3) The provisions of this Act are
independent and severable, and if any
provision of this Act, or the applicability
of any provision to any person or
circumstance, shall be held to be invalid by
a court of competent jurisdiction, the
remainder of this Act shall not be affected
and shall be given effect to the fullest
extent practicable.
The attorney generals office reviewed the petition
application for compliance with the statutes that govern Alaskas
initiative process, AS 15.45.0302 and AS 15.45.040.3 It advised
then-Lieutenant Governor Loren Leman that the initiative did not
comply with the constitutional and statutory provisions governing
the use of Alaskas initiative process. In its recommendation to
the lieutenant governor, the attorney generals office advised
that Initiative 03INDP failed because [t]he initiative may not be
used to propose amendments to the Alaska State Constitution and
the law is clear that a state may not secede from the union.
Based on this recommendation, the lieutenant governor declined to
certify the initiative petition for circulation.4
Kohlhaas appealed to the superior court, arguing that
the lieutenant governor was required to certify the initiative
for circulation because initiatives that are not clearly
unconstitutional may be judicially reviewed only after enactment.
Superior Court Judge Sen K. Tan ruled in favor of the State on
the ground that secession from the United States is clearly
illegal, and Kohlhaas appealed that decision.
In Kohlhaas I, we held that (1) the State may refuse to
certify an initiative proposing ends that are clearly
unconstitutional; (2) secession from the United States is clearly
unconstitutional and therefore an improper subject for the
initiative, and thus the State properly rejected the petition
proposing the initiative; and (3) because the initiative had not
been circulated, possible severance of its unconstitutional
portions would not be considered.5
B. Initiative 07AKIN and the Current Case
On January 29, 2007, Kohlhaas, Lynette Clark, and Linda
Winkelman filed an application with the lieutenant governors
office for an initiative petition calling for Alaskans to vote on
seeking changes in existing law and constitutional provisions to
authorize secession from the United States. This initiative,
known as 07AKIN, differed from the prior initiative in that it
did not expressly propose outright secession but instead
proposed that the State seek changes in law and constitutional
provisions to authorize secession. Its text reads as follows:
AN INITIATIVE REQUIRING THE STATE OF ALASKA
TO VOTE ON SEEKING CHANGES IN EXISTING LAW
AND CONSTITUTIONAL PROVISIONS TO AUTHORIZE
ALASKAN INDEPENDENCE.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF
ALASKA:
(1) At the next regular election, the
following question shall be presented to the
voters of the State of Alaska for approval or
rejection:
Shall the State of Alaska seek changes in
existing law and Constitutional provisions to
authorize it to obtain independence from the
United States of America?
(2) If this question is not answered
affirmatively when this question is presented
to the voters, then this question shall be
placed before the voters of Alaska every ten
years thereafter.
(3) The provisions of this Act are
independent and severable, and if any
provision of this Act, or the applicability
of any provision to any person or
circumstance, shall be held to be invalid by
a court of competent jurisdiction, the
remainder of this Act shall not be affected
and shall be given effect to the fullest
extent practicable.
After receiving the application, then-Lieutenant Governor Sean
Parnell forwarded the initiative petition to then-Attorney
General Talis Colberg and requested review of the petition
application to determine whether it complies with AS 15.45.030
and AS 15.45.040.
In late February 2007 the attorney generals office
provided a memorandum of advice to the lieutenant governor
recommending that he deny certification of the petition because
it did not comply with the constitutional and statutory
provisions governing the use of the initiative process. The
memorandum concluded that [t]he proposed bill still calls for
Alaskas secession from the United States, which is clearly
unconstitutional, and therefore a prohibited subject for an
initiative, and recommended that the lieutenant governor decline
to certify the application. On March 7, 2007, the lieutenant
governor notified Kohlhaas that he was denying certification of
the initiative petition.
Later that month, Kohlhaas filed a complaint seeking
judicial review of the lieutenant governors refusal to certify
his initiative petition for circulation. In mid-April the State
filed its answer and requested that Kohlhaass complaint be
dismissed with prejudice. In early September 2007 Kohlhaas filed
a motion for summary judgment. Less than a month later, the State
opposed Kohlhaass motion and filed its own cross-motion for
summary judgment.
On January 4, 2008, Superior Court Judge Jack W. Smith
granted the States motion for summary judgment and found that
Kohlhaass initiative application propose[d] a measure seeking
secession for Alaska from the union . . . , an objective that is
clearly unconstitutional under controlling legal authority.
Citing Kohlhaas I, the superior court concluded that [w]here an
initiative application proposes a clearly unconstitutional
measure, or proposes a constitutional amendment, the [l]ieutenant
[g]overnor is empowered to conduct a pre-election review and deny
certification of the initiative application. Kohlhaas appeals.
III. STANDARD OF REVIEW
We review a grant of summary judgment de novo.6 When
the superior court acts as an intermediate court of appeals, we
independently review the decision of the administrative agency or
actor.7 To issues of statutory and constitutional interpretation
we apply our independent judgment, adopting the rule of law that
is most persuasive in light of precedent, reason, and policy.8
As we explained in Kohlhaas I, although we liberally construe
constitutional and statutory provisions that apply to the
initiative process, we also have a duty to consider carefully the
initiatives subject matter, given the constitutional limits on
the peoples right to direct legislation.9
IV. DISCUSSION
Article XI, section 1 of the Alaska Constitution
guarantees Alaskans the right to enact legislation by initiative:
The people may propose and enact laws by the initiative, and
approve or reject acts of the legislature by the referendum. The
right to enact legislation by initiative must be exercised in
accordance with certain limitations, however, and where a
proposed initiative exceeds those limitations, the State of
Alaska may refuse certification.
In Kohlhaas I, we described two grounds on which the
State may deny certification of an initiative, from which denial
the sponsors of the initiative may obtain judicial review:
First, a petition may be rejected if it violates the subject
matter restrictions that arise from the constitutional and
statutory provisions governing initiatives . . . . Second, a
petition may be rejected if it proposes a substantive ordinance
where controlling authority establishes its unconstitutionality.10
In light of these alternative grounds for rejecting an
initiative, we do not need to decide whether Kohlhaass proposed
initiative calls for actual secession or constitutional change to
allow secession. If and to the extent the initiative calls for
secession itself, it is clearly unconstitutional and therefore an
improper subject for the initiative process. If and to the
extent the initiative calls for changes in the Alaska
Constitution to allow secession, it proposes constitutional
change and is therefore an improper subject for the initiative
process.
A. The State May Refuse To Certify an Initiative Proposing
Action that Is Clearly Unconstitutional.
In Kodiak Island Borough v. Mahoney, we gave as an
example of a clearly unconstitutional initiative that would
properly be rejected (even if correctly submitted as a procedural
matter) an initiative proposing an ordinance that would mandate
local school segregation based on race.11 As we explained, a
clerks power to reject a clearly unconstitutional initiative
proposal is analogous to the authority [of executive agencies] to
abrogate a statute which is clearly unconstitutional under a
United States Supreme Court decision dealing with a similar law.12
If a proposed initiative seeks a clearly unconstitutional end,
the State may deny certification.13
Kohlhaass first initiative called for a statewide vote
on whether Alaska should secede from the United States. Kohlhaas
claimed his initiative was not clearly unconstitutional because
neither the Alaska Constitution nor the United States
Constitution contains provisions expressly prohibiting secession.14
We rejected this argument.15 Citing long-established federal
constitutional law prohibiting secession, we held that the
initiative was improper because it proposed the clearly
unconstitutional end of secession.16
The constitutionality of secession was intensely
debated and . . . unresolved until the end of the Civil War.17 As
President Abraham Lincoln stated in his first inaugural address,
A disruption of the Federal Union heretofore only menaced, is now
formidably attempted.18 President Lincoln tried to persuade the
country to reject threats of secession from southern states,
arguing that no State, upon its own mere motion, can lawfully get
out of the Union, that resolves and ordinances to that effect
are legally void,19 and that the Union of these States is
perpetual.20 While a states ability to secede was an unsettled
question before the end of the Civil War, subsequent United
States Supreme Court opinions have concluded that secession is
clearly unconstitutional, and Lincolns belief in a perpetual
Union is reflected in what we have described as a plenitude of
Supreme Court cases holding as completely null the acts of
secession by Confederate states.21 In Texas v. White, an opinion
issued just after the Civil War, the United States Supreme Court
stated:
The Constitution, in all its provisions,
looks to an indestructible Union, composed of
indestructible States. When, therefore,
Texas became one of the United States, she
entered into an indissoluble relation. All
the obligations of perpetual union, and all
the guaranties of republican government in
the Union, attached at once to the State.
The act which consummated her admission into
the Union was something more than a compact;
it was the incorporation of a new member into
the political body. And it was final. The
union between Texas and other States was as
complete, as perpetual, and as indissoluble
as the union between the original States.
There was no place for reconsideration, or
revocation, except through revolution, or
through consent of the States.[22]
This is the law to which we Alaskans bound ourselves at
the moment we achieved statehood. We recognized in Kohlhaas I:
When the forty-nine-star flag was first raised at Juneau, we
Alaskans committed ourselves to that indestructible Union, for
good or ill, in perpetuity.23 We concluded that because
[s]ecession is clearly unconstitutional24 and [b]ecause the
initiative [sought] a clearly unconstitutional end, the
lieutenant governor correctly declined to certify it.25
Kohlhaass revised initiative calls for a popular vote
on whether the State should seek changes in state and federal law
and the state and federal constitutions to allow secession.
Kohlhaas concedes that, under Kohlhaas I, secession is clearly
unconstitutional, and therefore an improper subject for an
initiative but argues that secession is not the subject of this
proposed initiative. Instead, Kohlhaas argues, his revised
initiative mandates [the] perfectly legal act of changing
existing law and [c]onstitutional provisions to authorize
secession. Kohlhaas asserts that his revised initiative is not
clearly unconstitutional because [t]he seeking of changes in
existing law is not unconstitutional.
The State maintains that Kohlhaass new initiative
nonetheless continues to propose an unconstitutional end: The
differences in the text of the two initiative measures do not
change the central core of both measures secession. The States
position mirrors the advice that was given to the lieutenant
governor by the attorney generals office, which counseled that
despite language changes in the revised initiative, these changes
are not sufficient to remedy the deficiency in the bill that we
identified in our review of the earlier, similar initiative
application. The proposed bill still calls for Alaskas secession
from the United States, which is clearly unconstitutional, and
therefore a prohibited subject for the initiative. The State
argues that Kohlhaass tactic of proposing an initiative measure
for the people to vote to seek amendment of state statutes, the
state constitution, and the federal constitution could
potentially allow a popular vote to seek . . . all sorts of
clearly unconstitutional ordinances. But as we ruled in Kohlhaas
I, Alaskas initiative process may not be used to accomplish a
clearly unconstitutional end.26
We do not need to decide this question. It is
sufficient for this portion of the discussion to say that if and
to the extent Kohlhaass revised initiative seeks secession
itself, it is clearly unconstitutional and therefore an improper
subject for the initiative process.27
B. The State May Refuse To Certify an Initiative that
Proposes Constitutional Change.
We turn now to whether, even if it does not call for
clearly unconstitutional action, the revised initiative proffered
by Kohlhaas proposes constitutional change. We conclude that it
does.28
As provided in Article XIII, the Alaska Constitution
may be changed only two ways: (1) by constitutional convention,
subject to ratification by the people; and (2) by a specific
proposal that receives two-thirds vote by each house of the
legislature, followed by a majority vote at the next general
election.29 The people of Alaska may not use the initiative
process to propose constitutional amendments.30 As we held in
State v. Lewis, The Alaska Constitution may not be amended by
popular vote alone, without prior action by either the
legislature or a constitutional convention.31 Thus, if a proposed
initiative seeks constitutional change, it violates the subject
matter restrictions on Alaskans right of initiative, and the
lieutenant governor may deny certification.32
Kohlhaas argues in favor of the revised initiative that
traditional avenues for legal, including constitutional, change
may be used to render even secession legal. In reference to
Texas v. White,33 Kohlhaas specifically suggests that
reconsidering or revoking ones statehood could be achieved
lawfully through [t]he consent of the States. But even if
Kohlhaas is correct in arguing that our state constitution could
be changed to allow secession, the initiative process is not an
available forum through which to pursue such change.34
Kohlhaass revised initiative explicitly directs state
officials to seek changes in existing . . . [c]onstitutional
provisions that currently prohibit secession from the United
States of America. Thus, the initiative itself recognizes that
legalizing secession would require changing the Alaska
Constitution. Moreover, even if the initiative did not include
explicit reference to constitutional provisions and instead
directed state officials only to seek change in existing law to
permit secession, the initiative would still anticipate
constitutional change. There is simply no way to accomplish the
goal of Kohlhaass revised initiative to render secession
constitutional without changing the Alaska Constitution.35
Our written constitution was drafted not only as a
framework for Alaskas government but also as a compelling new
argument for statehood itself36 that would convince both the
people of Alaska and members of the United States Congress that
Alaska was ready to manage its own affairs.37 As its Framers
knew, the Alaska Constitution would become operative only if and
when Alaska became one of the United States. Because the Alaska
Constitution is rooted in the relationship between the State of
Alaska and the United States of America, neither the political
framework it establishes nor the political community it names
exists outside of that relationship.
Activated by the formal proclamation of statehood on
January 3, 1959, the Alaska Constitution created a state
government that is inextricably tied to the United States
government. A dozen articles and more than two dozen sections of
the Alaska Constitution refer to the federal government or
constitution of the United States, including the provision that
bases voter qualification on United States citizenship;38 the
requirement that officials in the three branches of government,
including legislators,39 judges,40 and members of the executive
branch,41 be United States citizens; provisions relating to state
legislative apportionment as based on the official reporting of
the United States Census;42 provisions relating to natural
resources;43 the provision disqualifying from public office anyone
who advocates, or belongs to an organization that advocates,
violent overthrow of the United States government;44 and the
requirement that all state officials take an oath to support and
defend the United States Constitution.45
Moreover, Alaskans political lives are inextricably
tied to both the government of the State of Alaska and the
government of the United States of America. Citizens of both, we
share with all Alaska residents the rights and obligations of our
state collective and we share with all United States citizens
the rights and obligations of our federal union. In fact,
fulfilling the inherent right of [Alaskans] to full citizenship
as set forth in the Constitution of the United States was a
primary goal of statehood.46 Altering Alaskas statehood status
and relationship with the federal government would necessarily,
and fundamentally, alter the character of each and every Alaskans
citizenship.
If the people of Alaska wish to effect lawful
constitutional change, they must do so in the modes outlined by
the Alaska Constitution itself. As we have long held, the
initiative process is an inappropriate forum through which to
pursue constitutional change. Even if Kohlhaass revised
initiative does not seek secession, it proposes constitutional
change to permit secession and is therefore an improper subject
for the initiative process.47
V. CONCLUSION
Kohlhaass revised initiative seeks either secession
itself or a change in the Alaska Constitution to allow secession.
We have held that secession from the Union is clearly
unconstitutional. We have also held that the Alaska Constitution
may not be amended by initiative. Therefore, the lieutenant
governor correctly denied the initiatives certification and it
was not error for the superior court to dismiss Kohlhaass suit on
summary judgment grounds. For these reasons, we AFFIRM the
superior courts judgment.
_______________________________
1 Kohlhaas v. State, Office of Lieutenant Governor
(Kohlhaas I), 147 P.3d 714, 715-16 (Alaska 2006). Unless
otherwise noted, this subsection draws directly from the
statement of facts in Kohlhaas I.
2 AS 15.45.030 provides:
The application must include the
(1) proposed bill;
(2) printed name, the signature, the
address, and a numerical identifier of not
fewer than 100 qualified voters who will
serve as sponsors; each signature page must
include a statement that the sponsors are
qualified voters who signed the application
with the proposed bill attached; and
(3) designation of an initiative
committee consisting of three of the sponsors
who subscribed to the application and
represent all sponsors and subscribers in
matters relating to the initiative; the
designation must include the name, mailing
address, and signature of each committee
member.
3 AS 15.45.040 provides:
The proposed bill shall be in the following
form:
(1) the bill shall be confined to one
subject;
(2) the subject of the bill shall be
expressed in the title;
(3) the enacting clause of the bill
shall be: Be it enacted by the People of the
State of Alaska;
(4) the bill may not include subjects
restricted by AS 15.45.010.
AS 15.45.010 provides:
The law-making powers assigned to the
legislature may be exercised by the people
through the initiative. However, an
initiative may not be proposed to dedicate
revenue, to make or repeal appropriations, to
create courts, to define the jurisdiction of
courts or prescribe their rules, or to enact
local or special legislation.
4 Former AS 15.45.070 provides: The lieutenant governor
shall review the [initiative] application and shall either
certify it or notify the initiative committee of the grounds for
denial. This statute was amended in 2006 to include a sixty-day
deadline. Ch. 38, 2, SLA 2006. AS 15.45.080 provides: The
lieutenant governor shall deny certification upon determining in
writing that (1) the proposed bill to be initiated is not in the
required form; (2) the application is not substantially in the
required form; or (3) there is an insufficient number of
qualified sponsors.
5 147 P.3d at 717-20.
6 Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 991 (Alaska 2004).
7 Kohlhaas I, 147 P.3d at 717 (citing Circle De Lumber
Co. v. Humphrey, 130 P.3d 941, 946 (Alaska 2006)).
8 Alaska Action Ctr., 84 P.3d at 991 (alteration and
internal quotation marks omitted).
9 147 P.3d at 717 (citing Brooks v. Wright, 971 P.2d
1025, 1027 (Alaska 1999)).
10 Id. (internal quotation marks omitted).
11 71 P.3d 896, 900 n.22 (Alaska 2003) (citing Brown v.
Bd. of Educ. of Topeka, Kansas, 349 U.S. 294 (1955), for the
proposition that racial segregation in public schools is
unconstitutional)).
12 Id. at 900 (internal quotation mark omitted).
13 Kohlhaas I, 147 P.3d at 717.
14 Id. at 718.
15 Id.
16 Id. at 718-20.
17 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6
n.1 (2004).
18 Abraham Lincoln, First Inaugural Address (Mar. 4,
1861), in Abraham Lincoln: Speeches and Writings 18591865, at
215, 217 (Don E. Fehrenbacher ed., 1989).
19 Id. at 218 (emphasis in original).
20 Id. at 217.
21 Kohlhaas I, 147 P.3d at 719. We recognized in
Kohlhaas I that [u]nsurprisingly, the Supreme Court has had
little occasion since Reconstruction to address the legality of
secession. Id. Thus, in Kohlhaas I, 147 P.3d at 719 n.25, we
cited decisions of the United States Supreme Court in White v.
Cannon, 73 U.S. (6 Wall.) 443, 450 (1867), which held that the
Louisiana ordinance of secession was an absolute nullity; White
v. Hart, 80 U.S. (13 Wall.) 646, 651 (1871), which ruled that
[a]t no time were the rebellious States, including Georgia, out
of the pale of the Union; Taylor v. Thomas, 89 U.S. (22 Wall.)
479, 491 (1874), which invalidated the issuance of treasury notes
following Mississippis ordinance of secession; and Daniels v.
Tearney, 102 U.S. 415, 418 (1880), which declined to discuss the
invalidity of a secession ordinance because the issue has been
settled by the arbitrament of arms and the repeated adjudications
of this court.
22 74 U.S. (7 Wall.) 700, 725-26 (1868).
23 147 P.3d at 720.
24 Id.
25 Id. at 715.
26 Id. at 717-18.
27 Id. at 715.
28 Within the context of this appeal, we do not have to
reach the question whether any constitutional change proposed by
the revised initiative would constitute constitutional amendment
or revision. In Bess v. Ulmer, we held that the Alaska
Constitution distinguishes between two distinct kinds of
constitutional change: amendment and revision. 985 P.2d 979, 982-
83 (Alaska 1999) (The Framers of Alaskas Constitution explicitly
contemplated the importance of the differentiation between
amendments and revisions and between their respective fields of
application.). Because we hold that Kohlhaass revised initiative
is improper as a ballot measure, we do not have to reach the
issue whether legal change to allow secession would rise to the
level of a constitutional revision requiring a constitutional
convention.
29 Alaska Const. art. XIII, 1, 4; Starr v. Hagglund, 374
P.2d 316, 317 n.2 (Alaska 1962).
30 Alaskans for Legislative Reform v. State, 887 P.2d 960,
962 n.1 (Alaska 1994), overruled on other grounds by Kodiak
Island Borough v. Mahoney, 71 P.3d 896 (Alaska 2003); State v.
Lewis, 559 P.2d 630, 639 (Alaska 1977); Starr, 374 P.2d at 317
n.2.
31 559 P.2d at 639.
32 See AS 15.45.080 (The lieutenant governor shall deny
certification upon determining in writing that (1) the proposed
bill to be initiated is not in the required form . . . .).
33 74 U.S. (7 Wall.) 700 (1868).
34 In Kohlhaas I, after holding Kohlhaass first initiative
clearly unconstitutional under federal law, we did not need to
resolve the question whether the initiative improperly proposed
amending the Alaska Constitution.
35 Because we decide this case on state constitutional
grounds, we do not have to address the interplay between
Kohlhaass revised initiative and the United States Constitution.
36 Robert B. Atwood, Chairman, Alaska Statehood Committee,
Opening Session Address to the Alaska Constitutional Convention
(Nov. 8, 1955).
37 Ernest Gruening, Former Governor, Territory of Alaska,
Opening Session Address to the Alaska Constitutional Convention
(Nov. 9, 1955) (discussing the restrictions, discriminations and
exclusions Alaska endured as a territory of the United States);
Victor Fischer, Alaskas Constitutional Convention 3, 10, 25-28,
180-84 (1975).
38 Alaska Const. art. V, 1.
39 See Alaska Const. art. II, 2 (requiring all
legislators to be qualified Alaska voters).
40 Alaska Const. art. IV, 4 (qualifications for supreme
court justices and superior court judges).
41 Alaska Const. art. III, 25 (qualifications for heads
of principal executive departments); Alaska Const. art. III, 26
(qualifications for members of boards and commissions at head of
principal departments, regulatory agencies, and quasi-judicial
agencies); see also Alaska Const. art. III, 2, 7 (requiring
governor and lieutenant governor to be qualified Alaska voters).
42 Alaska Const. art. VI, 1, 2, 3, 8(b), 10(a); see also
Alaska Const. art. VI, 11 (allowing enforcement by any qualified
Alaska voter).
43 Alaska Const. art. VIII, 6, 9, 11, 14.
44 Alaska Const. art. XII, 4.
45 Alaska Const. art. XII, 5.
46 William Egan, President, Alaska Constitutional
Convention, Closing Session Address to the Alaska Constitutional
Convention (Feb. 5, 1956) (We love our great United States of
America, and our hearts belong too, to our great Territory of
Alaska and we will never have a true peace of mind until we are
taken in full membership as one of the great states of the
Union.); see also Ernest Gruening, supra note 37 (We Alaskans
believe passionately that American citizenship is the most
precious possession in the world. Hence we want it in full
measure; full citizenship instead of half-citizenship; first
class instead of second class citizenship. We demand equality
with all other Americans, and the liberties, long denied us, that
go with it.).
47 Both parties also raised and briefed the question
whether Kohlhaass revised initiative proposes a law or is merely
an advisory measure. Because Kohlhaass revised initiative
implicates our larger prohibition on constitutional amendment by
initiative, we do not have to decide this question.
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