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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Public Offices Commission v. Donna Patrick, James K. Barnett, and John P. Lambert (9/3/2021) sp-7551
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA PUBLIC OFFICES )
COMMISSION, ) Supreme Court No. S-17649
)
Petitioner,
) Superior Court No. 3AN-18-05726 CI
)
v.
) O P I N I O N
)
DONNA PATRICK,
) No. 7551 - September 3, 2021
JAMES K. BARNETT, and )
JOHN P. LAMBERT, )
)
Respondents. )
)
Petition for Review from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
William F. Morse, Judge.
Appearances: Laura Fox, Senior Assistant Attorney General,
Anchorage, and Clyde "Ed" Sniffen, Jr., Acting Attorney
General, Juneau, for Petitioner. Jason Harrow and Lawrence
Lessig, Equal Citizens, Los Angeles, California, and
Elizabeth Hodes and M. Scott Broadwell, Davis Wright
Tremaine LLP, Anchorage, for Respondents.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Borghesan, Justice, not participating.]
CARNEY, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
In 2012 the Alaska Public Offices Commission (APOC) issued an advisory
opinion stating that the contribution limits in Alaska's campaign finance law are
unconstitutional as applied to contributions to independent expenditure groups. In 2018
three individuals filed complaints with APOC alleging that independent expenditure
groups had exceeded Alaska's contribution limits. APOC declined to enforce the
contribution limits based on its advisory opinion. The individuals appealed to the
superior court, which reversed APOC's dismissal of the complaints and ordered APOC
to reconsider its advisory opinion in light of a recent Ninth Circuit Court of Appeals
decision. APOC appealed, arguing that it should not be required to enforce laws it views
as unconstitutional and that its constitutional determination is correct. Because it was
error to reverse APOC's dismissal of the complaints, we reverse the superior court's
order.
II. FACTS AND PROCEEDINGS
A. Alaska's Campaign Finance Laws
Alaska's campaign finance laws distinguish between campaign
contributions - that is, payments to a candidate, political party, or other group for the
purpose of influencing an election - and campaign expenditures, which are transactions
that secure goods or services to influence an election.1 For example, an individual's
payment to a political party would be a contribution; if the party then spent that money
on a political advertisement, the party's spending would be an expenditure.2
1 See AS 15.13.400(4) (defining "contribution"); AS 15.13.400(7) (defining
"expenditure").
2 See Buckley v. Valeo, 424 U.S. 1, 21-23 (1976), superseded by statute on
other grounds as stated in McConnell v. FEC, 540 U.S. 93, 120-22 (2003) (contrasting
(continued...)
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Expenditures can be either coordinated or independent; an "independent expenditure"
is one "made without the direct or indirect consultation or cooperation with, or at the
suggestion or the request of, or with the prior consent of, a candidate, a candidate's
campaign treasurer or deputy campaign treasurer, or another person acting as a principal
3 At issue in this case is AS 15.13.070, the campaign finance
or agent of the candidate."
law that limits campaign contributions to candidates, groups, and parties.
In January 2010 the United States Supreme Court issued a landmark
decision in Citizens United v. Federal Election Commission, striking down restrictions
on independent expenditures by corporations as an unconstitutional restriction on free
speech and holding that "quid pro quo corruption" is the only form of corruption that
could be targeted by campaign finance limits.4 Citizens United did not directly address
restrictions on contributions to independent expenditure groups.5
In February 2010 Alaska's then-Attorney General Dan Sullivan prepared
a memorandum analyzing the impact of Citizens United on Alaska campaign finance
election laws. The memorandum concluded that Alaska's prohibitions on independent
expenditures by corporations and labor unions were likely unconstitutional but that its
laws regulating "contributions to candidates, coordinated expenditures, disclaimers, and
disclosures are not directly affected."
2 (...continued)
campaign expenditures with campaign contributions in the federal context).
3 AS 15.13.400(11).
4 558 U.S. 310, 359, 365 (2010).
5 We use "independent expenditure groups" to refer to groups that make only
independent expenditures. A group that makes independent expenditures as well as
contributions is not an independent expenditure group.
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In 2012 APOC issued a unanimous advisory opinion at the request of a
group that sought to "take in unlimited contributions from the public to make
independent expenditures only." APOC's advisory opinion stated that "contributions to
[groups] are currently limited by Alaska's campaign finance laws. However, it appears
to APOC staff that the United States Supreme Court's decision in Citizens United v. FEC
haspotentially rendered theserestrictions unconstitutionalas appliedto groupsthat make
only independent expenditures." APOC's advisory opinion cited several federal cases
which had overturned limits on contributions to independent expenditure groups and
concluded, "APOC Staff recommends that [the group's] proposed contribution activity
be allowed because the statutory limitation to that activity may be unconstitutional."
B. Commission Proceedings
In January 2018 Donna Patrick, James K. Barnett, and John P. Lambert
(collectively Patrick) filed identical complaints with APOC against two independent
expenditure groups. The complaints alleged that the groups had accepted contributions
from individuals and groups in excess of the limits imposed by AS 15.13.070(b)-(c).
Subsection (b) of the statute limits contributions from individuals to groups, while
subsection (c) limits contributions from groups to other groups.
APOC's staff rejected the complaints because they "concern[ed]
transactionsand activity described and indistinguishablefromtheactivity in anapproved
advisory opinion" and cited its 2012 advisory opinion. Patrick requested that APOC
review its staff's decision.
APOC considered Patrick's request at its February 2018 meeting. Patrick
argued that the advisory opinion was incorrect and should be reconsidered, but APOC's
staff attorney argued that it was still valid. In March APOC issued an order affirming
the denial of Patrick's complaints. It cited AS 15.13.374(e)(1)-(2), which prohibits
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APOC from considering a complaint about activities approved in an advisory opinion, 6
and concluded that the 2012 advisory opinion prevented it from considering Patrick's
complaints.
C. Administrative Appeal
Patrick appealed APOC's decision to the superior court, arguing that the
contribution limits were constitutional because the Framers of the United States
Constitution had a broader view of corruption than the quid pro quo corruption identified
in Citizens United. The superior court allowed Patrick to present expert testimony on the
Framers' understanding of corruption, which Patrick argued was key to her position that
the contribution limits in AS 15.13.070 are constitutional as applied to independent
expenditure groups. The court heard testimony from Patrick's expert witnesses in
October 2018.
In November 2019 the superior court reversed APOC's dismissal of the
complaints and remanded for APOC to consider the complaints in light of a Ninth Circuit
7
decision, Thompson v. Hebdon. The Thompson court upheld Alaska's limit on
8
individual contributions to all groups, but the Supreme Court later vacated the decision.
6 AS 15.13.374(e) states, in relevant part: "A complaint under AS 15.13.380
may not be considered about a person involved in a transaction or activity that (1) was
described in an advisory opinion approved under (d) of this section; [or] (2) is
indistinguishable from the description of an activity that was approved in an advisory
opinion . . . ."
7 909 F.3d 1027 (9th Cir. 2018), judgment vacated , 140 S. Ct. 348 (2019).
8 Thompson v. Hebdon, 140 S. Ct. at 351 (2019).
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On remand the Ninth Circuit recently struck down that contribution limit as
unconstitutional.9
Thesuperior court also "encourage[d]allpartiestoseekimmediatereview,"
recommended that we grant review, and declined to rule on the constitutionality of
AS 15.13.070. APOC petitioned for review, which we granted. We ordered the parties
to address both the underlying constitutional issue and APOC's authority to decline to
enforce a law it deems unconstitutional.
APOC argues that it was prevented by statute from considering complaints
concerning activity approved in an advisory opinion, that its advisory opinion holding
AS 15.13.070 unconstitutional as applied was correct, and that it has discretion to refuse
to enforce laws it considers unconstitutional. Patrick agrees that APOC had authority to
decline to enforce a law it determined was unconstitutional, but argues that the law is
constitutional based on a novel originalist interpretation of the Constitution that the
Supreme Court has not considered.
III. STANDARD OF REVIEW
"Constitutionalissuesarequestions oflawsubject to independentreview."10
"We . . . substitute our own judgment for" the agency's when deciding questions of law
"[w]hen the statutory interpretation does not involve agency expertise, or the agency's
specialized knowledge and experience would not be particularly probative."11
9 Thompson v. Hebdon , No. 17-35019, 2021 WL 3235775, at *12 (9th Cir.
July 30, 2021).
10 Eberhart v. Alaska Pub. Offs. Comm'n, 426 P.3d 890, 894 (Alaska 2018)
(quoting Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015)).
11 Id. (quoting Studley v. Alaska Pub. Offs. Comm'n, 389 P.3d 18, 22 (Alaska
(continued...)
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----------------------- Page 7-----------------------
IV. DISCUSSION
The superior court declined to decide whether Alaska's contribution limit
is constitutional as applied to independent expenditure groups. Although neither this
court nor the Supreme Court has addressed the issue, APOC argues that limits on
contributions to independent expenditure groups are unconstitutional in light of Citizens
United and subsequent federal appellate cases. Patrick acknowledges that "a line of
federal appellate cases" has held that limiting such contributions is unconstitutional but
argues that those "cases were wrongly decided because the courts . . . were not presented
with evidence about the original understanding of the term 'corruption.' " We are not
persuaded by Patrick's argument and hold that AS 15.13.070's limits on contributions
to independent expenditure groups are unconstitutional.
A. Thompson v. Hebdon Is Not Dispositive.
The superior court based its decision on the original Ninth Circuit decision
in Thompson. But even before Thompson was overturned, the superior court's reliance
on it was misplaced. Thompson concerns the constitutionality of Alaska's contribution
limits in general;this caseaddresses theconstitutionality ofthosecontribution limits only
as applied to independent expenditure groups.12 There is only partial overlap between
11 (...continued)
2017)). If "the interpretation at issue implicat[ed] agency expertise or the determination
of fundamental policies within the scope of the agency's statutory functions," we would
"give deference to [the] agency's interpretation of a statute so long as it is reasonable."
Id. (quoting Studley, 389 P.3d at 22). In this case the agency's expertise is not
implicated.
12 2021 WL 3235775, at *3 (describing parties and challenges).
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13
the contribution limits addressed by Thompson and the ones at issue in this case. And
"[a]n as-applied [constitutional] challenge requires evaluation of the facts of the
particular case in which the challenge arises." 14
More relevant to this case are two other Ninth Circuit cases in which the
court indicated that contribution limits in other states were unconstitutional as applied
15 Because the issue in this case is the more precise
to independent expenditure groups.
question of the constitutionality of contribution limits as applied to independent
expenditure groups, those cases are more pertinent to our analysis. Indeed, APOC has
raised a concern that if it is required to prosecute Patrick's complaints, it will be placed
in the "impossible position" of having "to take an action that the Ninth Circuit has held
unconstitutional."
B. Federal Precedent Overwhelmingly Suggests That Limits On
Contributions To Independent Expenditure Groups Are
Unconstitutional.
The Supreme Court has yet to address whether limits on contributions to
independent expendituregroups areunconstitutional, but it has createdalegalframework
13 This case concerns Alaska's individual-to-group and group-to-group
contribution limits. Although Thompson addresses the individual-to-group contribution
limit, it does not address the group-to-group contribution limit. Id at *3 (listing
challenged provisions).
14 Dapo v. State, Off. of Child.'s Servs., 454 P.3d 171, 180 (Alaska 2019)
(alteration in original) (quoting Kyle S. v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 309 P.3d 1262, 1268 (Alaska 2013)).
15 See Long Beach Area Chamber of Com. v. City of Long Beach, 603 F.3d
684, 698 (9th Cir. 2010); Thalheimer v. City of San Diego, 645 F.3d 1109, 1121 (9th Cir.
2011), overruled on other grounds by Bd. of Trs. of Glazing Health & Welfare Tr. v.
Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019).
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to analyze the constitutionality of campaign finance laws. In Buckley v. Valeo , the Court
held that a law limiting campaign contributions will be upheld if it furthers a sufficiently
16 but a law limiting
important state interest and is closely drawn to serve that interest,
expenditures must "satisfy the exacting scrutiny applicable to limitations on core First
Amendment rights of political expression."17 The Court held that preventing corruption
and the appearance of corruption is a sufficiently important state interest.18 In Citizens
United the Court clarified that the anti-corruption interest identified in Buckley is
"limited to quid pro quo corruption."19 The Court struck down a law that prohibited
corporate independent expenditures, holding "that independent expenditures . . . do not
give rise to corruption or the appearance of corruption."20 The Court reiterated this
framework in McCutcheon v. FEC, where it noted that the only legitimate governmental
interest it had identified for restricting campaign finances was "preventing corruption or
the appearance of corruption" and emphasized that "Congress may target only a specific
21
type of corruption - 'quid pro quo' corruption."
Two rationales underlie the Court's different treatment of campaign
contributions and independent expenditures. First, the Court has held that contribution
limits are a "lesser restraint" on political speech than expenditure limits and therefore
16 424 U.S. 1, 25 (1976), superseded by statute on other grounds as stated in
McConnell v. FEC, 540 U.S. 93, 120-22 (2003).
17 Id. at 44-45.
18 Id. at 26-29 (plurality opinion) (upholding $1,000 contribution limit).
19 Citizens United v. FEC, 558 U.S. 310, 359 (2010).
20 Id. at 357.
21 572 U.S. 185, 206-07 (2014).
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22
subject to less exacting review. Second, the Court has reasoned that, unlike
contributions, independent expenditures are not prearranged or coordinated with a
campaign, which "alleviates the danger that expenditures will be given as a quid pro quo
for improper commitments from the candidate." 23
APOC argues that Citizens United calls into question the constitutionality
of limits on contributions to independent expenditure groups because, if independent
expenditures themselves do not give rise to corruption or its appearance, it is difficult to
argue that contributions to groups that make only independent expenditures give rise to
corruption or its appearance. A number of federal courts, including the Ninth Circuit,
have come to the same conclusion. Shortly after Citizens United, the D.C. Circuit Court
of Appeals decided in SpeechNow.org v. FEC that "contributions to groups that make
only independent expenditures . . . cannot corrupt or create the appearance of corruption"
and therefore "that the government has no anti-corruption interest in limiting
24 The Ninth Circuit held that a city
contributions to an independent expenditure group."
ordinance prohibiting groups from making independent expenditures if they received
contributions above certain amounts was unconstitutional as applied to political action
22 Id. at 197 (noting that expenditure limits are subject to exacting scrutiny
while campaign contributions are subject to "a lesser but still 'rigorous standard of
review' " (quoting Buckley, 424 U.S. at 29)); see also Buckley , 424 U.S. at 20-21
(reasoning thatcontributionlimits areless restrictivethanexpenditurelimitsbecause"[a]
contribution serves as a general expression of support for the candidate and his views,
but does not communicate the underlying basis for the support").
23 Citizens United, 558 U.S. at 357 (quoting Buckley, 424 U.S. at 47).
24 599 F.3d 686, 694-95 (D.C. Cir. 2010). Because the D.C. Circuit found no
legitimate government interest, it declined to decide which standard of review to apply,
holding that "[n]o matter which standard of review governs . . . the limits on
contributions to [an independent expenditure group] cannot stand." Id. at 696.
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25 26 27 28
committees that made only independent expenditures. The Second, Fourth, Fifth,
29 30
Seventh, and Tenth Circuit Courts of Appeals have reached similar conclusions. The
Second Circuit noted that "few contested legal questions are answered so consistently
31
by so many courts and judges."
25 Long Beach Area Chamber of Com. v. City of Long Beach , 603 F.3d 684,
698 (9th Cir. 2010). The Ninth Circuit later relied on this precedent to uphold a
preliminary injunction against enforcement of a similar law. Thalheimer v. City of San
Diego, 645 F.3d 1109, 1121 (9th Cir. 2011), overruled on other grounds by Bd. of Trs.
of Glazing Health & Welfare Tr. v. Chambers , 941 F.3d 1195, 1199 (9th Cir. 2019).
26 See N.Y. Progress &Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013)
(noting in preliminary injunction context that "[f]ew contested legal questions are
answered so consistently by so many courts and judges").
27 See N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 293 (4th Cir. 2008)
(observing that independent expenditure groups are "furthest removed" from candidates
and political action committees).
28 See Texans for Free Enter. v. Texas Ethics Comm'n, 732 F.3d 535, 537-40
(5th Cir. 2013) (upholding a preliminary injunction on the basis that a law limiting
contributions to independent expenditure groups was "incompatible with the First
Amendment").
29 See Wisc. Right to Life State PAC v. Barland, 664 F.3d 139, 155 (7th Cir.
2011) (holding $10,000 annual contribution cap unconstitutional as applied to
independent expenditure committees).
30 See Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir.
2013) (affirming grant of preliminary injunction and holding that political committees
not formally affiliated with a party or candidate "may receive unlimited contributions for
independent expenditures").
31 N.Y. Progress & Prot. PAC, 733 F.3d at 488.
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Although we are not bound by federal circuit court decisions, 32 we agree
with their reasoning. Given the Supreme Court's holding that preventing quid pro quo
corruption and its appearance is the only legitimate governmental interest for campaign
finance regulations and its holding that independent expenditures do not give rise to quid
33 there is no logical rationale for limiting
pro quo corruption or its appearance,
contributions to independent expenditure groups. If anything, contributions to such
groups are more attenuated from the possibility of quid pro quo corruption than the
expenditures themselves. There is no logical scenario in which making a contribution
to a group that will then make an expenditure is more prone to quid pro quo corruption
than the expenditure itself. In light of Citizens United's holding that independent
expenditures "do not give rise to corruption or the appearance of corruption,"34
contribution limits to independent expenditure groups would not withstand even the
lower level of scrutiny applied to contribution limits.35
32 See Native Vill. of Tununak v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 334 P.3d 165, 175 (Alaska 2014) ("We are 'not bound by decisions of
federal courts other than the United States Supreme Court on questions of federal law.' "
(quoting Totemoff v. State, 905 P.2d 954, 963 (Alaska 1995))).
33 Citizens United v. FEC, 558 U.S. 310, 357-59 (2010).
34 Id.
35 See Long Beach Area Chamber of Com. v. City of Long Beach, 603 F.3d
684, 693 (9th Cir. 2010) (holding that appeal does not turn on whether limit on
contributions to independent expenditure groups is classified as contribution limit or
expenditure limit because statute "does not withstand scrutiny under the constitutional
standards applicable to either type of campaign finance regulation").
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C. Patrick's Argument Fails Because It Is Based On The Assumption
That The U.S. Supreme Court Will Overrule Its Decision.
Patrick does not disputethatfederal courts haveconsistentlyheld that limits
on contributions to independent expenditure groups areunconstitutional. Patrick instead
argues that those cases were wrongly decided. Patrick agrees that if the government may
guard only against quid pro quo corruption, then "Alaska's law would not stand." But
Patrick contends that the Supreme Court has never been presented with the argument that
the government may permissibly use campaign finance laws to protect against forms of
corruption other than individual corruption. As a result, Patrick says, there is still an
opportunity for the Court to embrace broader conceptions of corruption held by the
Framers of the Constitution, specifically the concept of "institutional corruption."
Patrickassertsthat theFramers originally intended to guard against not only
individual corruption but also "institutional corruption" or "structural corruption."
Indeed, Patrick argues, "institutional corruption was the most important [consideration]
. . . as they developed their constitutional design." Patrick argues that the Framers
focused on "the structure of incentives allowed to evolve within institutions . . . .
[because i]nstitutional corruption occurs when those incentives undermine the intended
manner in which those institutions were meant to function." And Patrick points to
empirical evidence that unregulated campaign finance leads to institutional corruption
by making politicians dependent on, and therefore responsive to, a small number of
major donors rather than the population as a whole.
Patrick then posits that those justices who subscribe to an originalist
interpretation of the Constitution should adopt a more limited understanding of judges'
roles in protecting First Amendment rights because protecting First Amendment rights
was originally viewed as the province of legislators. Although Patrick acknowledges
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that modern First Amendment jurisprudence does not reflect an originalist
understanding, Patrick believes the originalists on the Court should nonetheless
"constrain judicial discretion by fixing the meaning of the First Amendment doctrine to
an original understanding of the concepts deployed."
36 arguing that
Patrick compares this case to District of Columbia v. Heller ,
in that case "the Court remade the scope of the Second Amendment" contrary to an
earlier decision because the government's brief in the earlier decision "provided scant
discussion of the history of the Second Amendment"37 and "presented . . . no counter-
discussion."38 Patrick argues that the Court could similarly revise its understanding of
the Constitution in this case in light of historical evidence not previously brought to its
attention.
Patrick's historical argument may be particularly apt in Alaska, which "has
the second smallest legislature in the country and derives approximately 90 percent of
39 making the state "highly, if not uniquely,
its revenues from one economic sector,"
40 Patrick's argument essentially
vulnerable to corruption in politics and government."
asks us to ignore Supreme Court precedent in the hope that the Court will reverse itself.
36 554 U.S. 570 (2008).
37 Id. at 623-24.
38 Id. at 624.
39 Thompson v. Hebdon, 140 S. Ct. 348, 351-52 (2019) (Ginsburg, J.,
concurring).
40 Id. at 352 (quoting Thompson v. Dauphinais, 217 F. Supp. 3d 1023, 1029
(D. Alaska 2016)).
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But the Court has clearly held that "while preventing corruption or its
appearance is a legitimate objective, Congress may target only a specific type of
41 Similarly, "because the Government's
corruption - ' quid pro quo ' corruption."
interest in preventing the appearance of corruption is equally confined to the appearance
of quid pro quo corruption, the Government may not seek to limit the appearance of
mere influence or access."42 And "independent expenditures, including those made by
corporations, do not give rise to corruption or the appearance of corruption."43 Patrick's
argument that corruption should be defined more broadly than quid pro quo corruption
is not new.44 The dissent in McCutcheon v. FEC made historical and structural
arguments for a broader view of corruption,45 and the plurality specifically rejected that
approach.46
41 McCutcheon v. FEC, 572 U.S. 185, 207 (plurality opinion) (2014).
42 Id. at 208.
43 Citizens United, 558 U.S. at 357.
44 See, e.g., McCutcheon, 572 U.S. at 235 (Breyer, J., dissenting) ("The
plurality's first claim - that large aggregate contributions do not 'give rise' to
'corruption' - is plausible only because the plurality defines 'corruption' too
narrowly.").
45 Id. at 236-37 (discussing structural concerns of the Framers and arguing
that "the First Amendment advances not only the individual's right to engage in political
speech, but also the public's interest in preserving a democratic order in which collective
speech matters" (emphasis in original)).
46 See id. at 208 (plurality opinion) ("The dissent advocates a broader
conception of corruption . . . .").
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While it is conceivable that the Supreme Court could overrule Citizens
United in light of Patrick's historical analysis, we are bound by the Court's current
interpretation of the federal Constitution. We will not rule otherwise based on a
47 Because the logic of Supreme Court
prediction that the Court will reverse itself.
precedent requires us to concludethatlimits on contributions to independent expenditure
groups are unconstitutional, AS 15.13.070's contribution limits are unconstitutional as
applied to contributions to independent expenditure groups.48
V. CONCLUSION
The superior court's decision is REVERSED and the case is REMANDED
for proceedings consistent with this opinion.
47 See Fam. Sec. Life Ins. Co. v. Daniel , 79 F. Supp. 62, 69 (E.D.S.C. 1948),
rev'd on other grounds , 336 U.S. 220 (1949) ("We are firmly of the opinion that if the
decisions of the Supreme Court are to be reversed, that function should be reserved to
the Supreme Court itself.").
48 Because the 2012 advisory opinion was correct, we need not address
APOC's argument that it was bound by the advisory opinion due to the "safe harbor"
provisions in AS 15.13.374(e)(2). And Patrick does not challenge APOC's authority to
decline to enforce a law it deemed unconstitutional. Because the parties do not dispute
that issue, we decline to decide it. See Clark v. Mun. of Anchorage, 777 P.2d 1159, 1161
n.3 (Alaska 1989) (declining to decide whether compromise and release was governed
by same rules governing "simple release[s] of tort liability" when parties agreed that it
was).
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