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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Croft v. Parnell (7/9/2010) sp-6491
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
| ERIC CROFT, a private individual, | ) |
| and ALASKANS FOR CLEAN | ) Supreme Court No. S- 13200 |
| ELECTIONS, an initiative group, | ) |
| and TIM JUNE, STEVE CLEARY, | ) Superior Court No. 3AN-07- 09339 CI |
| and JOE MCKINNON, initiative | ) |
| sponsors, | ) O P I N I O N |
| ) | |
| Appellants, | ) No. 6491 July 9, 2010 |
| ) | |
| v. | ) |
| ) | |
| SEAN PARNELL, LIEUTENANT | ) |
| GOVERNOR OF THE STATE OF | ) |
| ALASKA, and the STATE | ) |
| OF ALASKA, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Eric Croft, Law Offices of Eric
Croft, Joseph H. McKinnon, Law Offices of
Joseph H. McKinnon, Anchorage, for
Appellants. Michael A. Barnhill, Senior
Assistant Attorney General, Richard A.
Svobodny, Acting Attorney General, Juneau,
for Appellees.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Sponsors of an initiative challenge the lieutenant
governors refusal to certify the initiative for the ballot. The
lieutenant governor denied certification because he determined
that the initiative violated the single-subject requirement of AS
15.45.040. The sponsors filed suit in the superior court seeking
a declaration that the initiative did not violate the single-
subject rule. The superior court granted summary judgment in
favor of the lieutenant governor and the sponsors appeal.
Because the soft dedication of funds connecting the two aspects
of the initiative is an insufficient link, and because we find no
other sufficient connection between the initiatives proposed new
oil production tax and the initiatives proposed new clean
elections program, we agree that the initiative violates the
single-subject rule. Accordingly, we affirm the superior courts
order entering summary judgment in favor of the lieutenant
governor.
II. FACTS AND PROCEEDINGS
On May 29, 2007, Tim June, Steve Cleary, and Joe
McKinnon submitted an application for a ballot initiative to
Lieutenant Governor Sean Parnell.1 The initiative proposed a
program to provide public campaign funding to candidates for
state office on a voluntary, opt-in basis. The initiative also
proposed a three-cent tax on each barrel of oil produced in
Alaska and stated that [t]he legislature may appropriate . . .
the proceeds of the tax to fund the program. The proposal
included a non-binding directive that the legislature transfer
excess funds to the Permanent Fund Dividend.
After submitting the initiative application, the
sponsors engaged in informal communications with the Department
of Law that led the sponsors to file a second initiative
application. This second initiative application proposed the
public campaign funding program but not the additional tax on oil
production.
Lieutenant Governor Parnell reviewed the applications
as required by AS 15.45.070. This statute directs the lieutenant
governor to either certify an application for placement on the
ballot or explain why certification is denied.2 Lieutenant
Governor Parnell denied certification of the first initiative
proposal, explaining that the initiative violates the single-
subject rule because the initiative addresses two subjects that
have no fair relation to each other: (1) it creates a voluntary
system of public campaign financing, and (2) it imposes a tax on
oil production.
Lieutenant Governor Parnell approved the second version
of the initiative application. It appeared on the August 2008
ballot but did not pass.
The initiatives sponsors, Eric Croft and a group called
Alaskans for Clean Elections (collectively, the Sponsors), filed
a complaint in the superior court against Lieutenant Governor
Parnell and the State of Alaska (collectively, Lieutenant
Governor) seeking a declaration that the Lieutenant Governor
erroneously rejected the first initiative.
The superior court granted summary judgment in favor of
the Lieutenant Governor in June 2008. The Sponsors appeal.
III. STANDARD OF REVIEW
When reviewing a grant of summary judgment, we apply
our independent judgment, affirming if the record presents no
genuine issue of material fact and if the movant is entitled to
judgment as a matter of law.3 In determining whether the
prevailing party was entitled to judgment as a matter of law, we
draw [] all factual inferences in favor of, and view [] the facts
in the light most favorable to, the non-prevailing party.4
We interpret the Alaska Constitution using our
independent judgment, according to reason, practicality, and
common sense, taking into account the plain meaning and purpose
of the law as well as the intent of the drafters.5
IV. DISCUSSION
The parties agree that the only issue in this case is
whether the Sponsors initiative violates the Alaska Constitutions
single-subject rule.6 Article II, section 13 of the Alaska
Constitution provides, in part, that [e]very bill shall be
confined to one subject. Our court has ruled on challenges to
bills and initiatives under this provision in only seven cases.7
In each case, we identified a single subject that encompassed all
the provisions of the challenged bill or initiative; that is,
every provision of the bill or initiative, considered on its own,
related to a broader, single subject.8
Despite their contrary outcomes, the superior court
relied on these cases and ruled in favor of the Lieutenant
Governor, explaining that there is [no] connection between the
type of revenue created . . . [and] the type of program proposed
by the initiative. On appeal, the Sponsors argue that the trial
court improperly interpreted the single-subject rule to require a
nexus between a funding source and the funded program beyond the
fact of the funding. The Sponsors argue that even when two
provisions of a bill are not otherwise related by subject, if one
provision creates a program and another imposes a tax calibrated
to collect approximately the amount of revenue necessary to fund
the program, a non-binding, soft dedication of funds from the
revenue source is sufficient to unite what would otherwise be two
subjects into one, at least for purposes of the single-subject
test. The Sponsors also argue, in the alternative, that the
initiatives oil tax is thematically related to the campaign
finance program. We are not persuaded by either of these
arguments.
The single-subject rule protects the voters ability to
effectively exercise their right to vote by requiring that
different proposals be voted on separately. This approach allows
voters to express their will through their votes more precisely,
prevents the adoption of policies through stealth or fraud,9 and
prevents the passage of measures lacking popular support by means
of log-rolling.10
In ruling on single-subject challenges, we must balance
the rules purpose against the need for efficiency in the
legislative process. If the rule were applied too narrowly,
statutes might be restricted unduly in scope and permissible
subject matter, thereby multiplying and complicating the number
of necessary enactment[s] and their interrelationships.11 Our
solution has been to construe the single-subject provision . . .
with considerable breadth.12 We have consistently articulated the
substance of the test to reflect this approach:
All that is necessary is that [the] act
should embrace some one general subject;
and by this is meant, merely, that all
matters treated of should fall under
some one general idea, be so connected
with or related to each other, either
logically or in popular understanding,
as to be parts of, or germane to, one
general subject.[13]
In applying this test, we disregard mere verbal inaccuracies,
resolve doubts in favor of validity, and strike down challenged
proposals only when the violation is substantial and plain.14
In each of the seven cases in which this court has
addressed a single-subject challenge, we upheld the challenged
bill or initiative by determining that all provisions related to
a single general subject, theme, or purpose.15 But we have never
addressed the question, raised by the Sponsors in this case,
whether creating a revenue source that might fund an otherwise
unrelated program suffices to unite the revenue source with the
program as a single subject.
The Sponsors argue that the creation of a program and
the soft dedication of funds for that program are inherently
related provisions as a matter of both logic and popular
understanding. They argue that the Washington Supreme Courts
decision in Wash. Assn of Neighborhood Stores v. Wash. supports
their position.16 Neighborhood Stores involved an initiative that
increased taxes on cigarettes and dedicated the new revenue to
existing programs in the areas of violence reduction and drug
enforcement, health services, and water quality, with remaining
funding allocated to low-income health care programs and other
programs.17 The court held that the initiative did not violate
that states single-subject rule18 because the new taxes provided
revenue to programs that collectively constituted a single and
rationally unified proposal for improving the health of
[Washingtons] low-income citizens without imposing a net loss of
tax revenue on other preexisting programs.19
In this case, the superior court observed that neither
Neighborhood Stores nor any other example identified by
appellants addressed a single initiative that proposed the
creation of an entirely new government program and also proposed
the creation of a new and thematically unrelated revenue source.
The Neighborhood Stores initiative, which created and dedicated a
revenue source, is fundamentally different from the Sponsors
initiative, which proposed the creation and soft dedication of a
new revenue source, and proposed the creation of an entirely new
government program. The latter runs afoul of the single-subject
rule because it does not provide the voters with an opportunity
to express their approval or disapproval of each distinct
proposal.
Neighborhood Stores is also distinguishable because it
was decided in the context of Washingtons prohibition on the
dedication of funds beyond a single biennium,20 a framework
different from the proscription of dedicated funds in Alaska.
The Alaska Constitution expressly prohibits the binding
dedication of state revenues for specific projects.21 As the
superior court correctly noted, [t]he additional proceeds
generated by the [proposed] oil production tax need not and
indeed cannot be appropriate[d] to fund the Alaska Clean
Elections Program without running afoul of Article IX, section 7
of Alaskas Constitution. Because the dedication of funds is not
permitted in Alaska, a soft dedication cannot be considered for
purposes of a single-subject analysis and therefore cannot be
used to make two independent provisions of an initiative address
one subject. Without the soft dedication, the Sponsors proposed
initiative will satisfy the requirements of the single-subject
analysis only if its two provisions campaign finance and
taxation of the oil industry otherwise relate to a single
subject matter.
The Sponsors argue that even if the soft dedication of
tax revenue cannot be considered, the proposed oil production tax
is still related to the subject of clean elections because the
oil industry and the oil field services companies . . . exert a
tremendous and undue influence on Alaska politics and
politicians, and contributions from these groups have been
fueling [electoral] campaigns in Alaska for years. But the oil
industry is not the only source of contributions to political
campaigns in Alaska, and the proposed tax is on oil production,
not the political activities of the oil industry. The support
for the Sponsors argument two newspaper articles and a listing
of the top groups lobbying the Alaska Legislature is
insufficient to demonstrate a clear or established connection
between the oil industry and a need for public financing of state
electoral campaigns.
The proposed initiative directly implicates one of the
main purposes of the single-subject rule the prevention of log-
rolling in two ways. As noted earlier, the essence of log-
rolling is appealing to different constituencies by including
distinct provisions calculated to obtain sufficient votes to pass
a measure.22 The superior court observed that record oil and gas
prices, high oil company profits, the Exxon Valdez litigation,
and controversy regarding a proposed gas pipeline make the oil
industry a target for some groups whose votes on this initiative
could be driven entirely by such concerns. We agree that the
events and issues cited by the superior court could influence
some voters, but we note that other voters may be equally driven
by strong feelings of support for the jobs and tax revenue
generated by the oil industry in Alaska. Either way, coupling
the approval of a new oil production tax with approval of a
program to publicly fund elections deprives the voters of an
opportunity to send a clear message on each subject encompassed
by the Sponsors initiative.
The second way the initiative violates the prohibition
against log rolling is its inclusion of a non-binding directive
that the legislature transfer funds left over from public
elections to the Permanent Fund Dividend.23 The Permanent Fund
Dividend is entirely unrelated to the purpose of the clean
elections program; offering the chance of increased Permanent
Fund Dividend payments runs the risk of garnering support for the
clean elections program from voters who are otherwise indifferent
or even unsupportive of publicly funded campaigns.
V. CONCLUSION
For the reasons addressed above, we AFFIRM the decision
of the superior court.
_______________________________
1 The initiative was titled An Act establishing a program
of public funding for campaigns for state elected offices, to be
known as the Alaska Clean Elections Act, and amending the oil and
gas production tax to levy and collect a surcharge on oil as a
source of funding for that program.
2 AS 15.45.070 provides: Within 60 calendar days after
the date the application is received, the lieutenant governor
shall review the application and shall either certify it or
notify the initiative committee of the grounds for denial.
3 Beegan v. State, Dept of Transp. & Pub. Facilities,195
P.3d 134, 138 (Alaska 2008) (citing Matanuska Elec. Assn v.
Chugach Elec. Assn, 152 P.3d 460, 465 (Alaska 2007)).
4 State v. Jeffery, 170 P.3d 226, 229 (Alaska 2007)
(citing Lewis v. State, Dept of Corr., 139 P.3d 1266, 1268-69
(Alaska 2006)).
5 Id. at 230 (quoting Native Vill. of Elim v. State, 990
P.2d 1, 5 (Alaska 1999)(internal quotation marks omitted)).
6 The Sponsors application was rejected for violating
the single-subject provision of AS 15.45.040. Neither party
argues that this rule differs from restrictions imposed by
article II, section 13 of the Alaska Constitution, which
requires that every bill may have only one subject. We have
previously explained that, regardless of AS 15.45.040, the
[a]rticle II restriction . . . applies to initiatives under
article XII, section 11, which provides that the people may
exercise the legislatures law-making powers through the
initiative. Yute Air Alaska Inc. v. McAlpine, 698 P.2d 1173,
1179 n.2 (Alaska 1985).
7 See Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska
2002); Yute Air, 698 P.2d at 1173; State v. First Natl Bank of
Anchorage, 660 P.2d 406 (Alaska 1982); Short v. State, 600 P.2d
20 (Alaska 1979); North Slope Borough v. SOHIO Petroleum Corp.,
585 P.2d 534 (Alaska 1978); Gellert v. State, 522 P.2d 1120
(Alaska 1974); Suber v. Alaska State Bond Comm., 414 P.2d 546
(Alaska 1966).
8 See Evans, 56 P.3d at 1049, 1070 (changes to damages
recoverable for torts, changes to tort statutes of limitations,
change to allocation of fault between parties in tort suits,
change to offer of judgment rules, and grant of partial immunity
to hospitals all within the single subject of civil actions );
Yute Air, 698 P.2d at 1175, 1181 (repeal of regulations of motor
and air carriers in Alaska, prohibition on further similar
regulation, and requirement that governor seek repeal of federal
statute that, among other things, regulates shipping by sea, all
embraced by [t]he subject transportation ); First Natl Bank of
Anchorage, 660 P.2d at 414-15 (provisions regulating sale of
private land, and provisions on states power to lease state-
owned land and zone private lands all in some respect concern[]
land); Short, 600 P.2d at 22-24 & n.2 (purposes of new
correctional facilities sufficiently related to the purposes of
new buildings for state troopers, fish and wildlife protection,
a motor vehicles division, [and] a fire prevention division);
SOHIO, 585 P.2d at 545-46 (various provisions on municipal and
state taxes all relate directly to state taxation); Gellert, 522
P.2d at 1123 (flood control projects and small boat harbors all
part of a cooperative water resources development program);
Suber, 414 P.2d at 557 & n.23 (criminal penalty for false
statements in application for earthquake relief funds fairly
incidental to the general subject . . . of grants to
homeowners).
9 See Suber, 414 P.2d at 557.
10 Gellert, 522 P.2d at 1122 (Log-rolling consists of
deliberately inserting in one bill several dissimilar or
incongruous subjects in order to secure the necessary support
for passage of the measure. ).
11 Gellert, 522 P.2d at 1122; see also Evans, 56 P.3d at
1069 (quoting State v. First Natl Bank of Anchorage, 660 P.2d at
415 ); Yute Air, 698 P.2d at 1183 (Moore, J., dissenting)
(citing Gellert, 522 P.2d at 1122); Short, 600 P.2d at 23
(quoting Gellert, 522 P.2d at 1122).
12 Gellert, 522 P.2d at 1122.
13 Gellert, 522 P.2d at 1123 (quoting Johnson v.
Harrison, 50 N.W. 923, 924 (Minn. 1891)) (internal quotation
marks omitted); see also Evans, 56 P.3d at 1069 (quoting First
Natl Bank of Anchorage, 660 P.2d at 415); Yute Air, 698 P.2d at
1180-81 (quoting Gellert, 522 P.2d at 1123); First Natl Bank of
Anchorage, 660 P.2d at 415 (quoting Gellert, 522 P.2d at 1123);
Short, 660 P.2d at 24 (quoting Gellert, 522 P.2d at 1123);
SOHIO, 585 P.2d at 545 (quoting Gellert, 522 P.2d at 1123).
14 Gellert, 522 P.2d at 1122 (quoting Suber, 414 P.2d at
557); see also Evans, 56 P.3d at 1069 (quoting First Natl Bank
of Anchorage, 660 P.2d at 415); First Natl Bank of Anchorage,
660 P.2d at 415 (quoting SOHIO, 585 P.2d at 545); Short, 600
P.2d at 23 nn. 7 & 8 (citing SOHIO, 585 P.2d at 545, and quoting
Suber, 414 P.2d at 557); SOHIO, 585 P.2d at 545 (citing Suber,
414 P.2d at 557).
15 See supra note 8.
16 70 P.3d 920 (Wash. 2003).
17 Id. at 922.
18 Wash. Const. art. II, 19.
19 Neighborhood Stores, 70 P.3d at 926.
20 Wash. Const. art. VIII, 4.
21 Article IX, section 7 prohibits binding dedications of
state revenues to specific projects. Article XI, section 7
independently prohibits initiatives from dedicating revenues.
22 See supra note 10.
23 This provision is part of proposed AS 15.14.010(e).
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