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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Honorable Michael J Dunleavy, Commissioner Kelly Tshibaka, and Commissioner Michael Johnson v. The Alaska Legislative Council (8/12/2022) sp-7612
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
STATE OF ALASKA; OFFICE OF )
THE GOVERNOR, MIKE )
Supreme Court Nos. S-17666/17785
DUNLEAVY, in an official capacity; )
DEPARTMENT OF )
Superior Court No. 1JU-19-00753 CI
ADMINISTRATION, PAULA )
VRANA, in an official capacity; and )
O P I N I O N
DEPARTMENT OF EDUCATION & )
EARLY DEVELOPMENT, MICHAEL
) No. 7612 - August 12, 2022
JOHNSON, in an official capacity, )
)
Appellants, )
)
v. )
)
THE ALASKA LEGISLATIVE
)
COUNCIL and COALITION FOR
)
EDUCATION EQUITY,
)
)
Appellees. )
)
)
STATE OF ALASKA; OFFICE OF )
THE GOVERNOR, MIKE )
DUNLEAVY, in an official capacity; )
DEPARTMENT OF )
ADMINISTRATION, PAULA )
VRANA, in an official capacity; and )
DEPARTMENT OF EDUCATION & )
)
EARLY DEVELOPMENT, MICHAEL
JOHNSON, in an official capacity, )
)
Appellants, )
)
----------------------- Page 2-----------------------
v. )
)
COALITION FOR EDUCATION )
EQUITY, )
)
Appellee. )
)
Appeals f
rom the Superior Court of the State of Alaska, First
Judicial District, Juneau, Daniel Schally, Judge.
Appearances: Dario Borghesan and Laura Fox, Senior
Assistant Attorneys General, Anchorage, and Clyde "Ed"
Sniffen, Jr., Acting Attorney General, Juneau, for Appellants.
Megan A. Wallace and Hilary Martin, Alaska State
Legislature, Legislative Affairs Agency, Division of Legal
and Research Services, Juneau, for Appellee The Alaska
Legislative Council. Howard S. Trickey and Peter A. Scully,
Schwabe, Williamson & Wyatt, P.C., Anchorage, for
Appellee Coalition for Education Equity. Scott Kendall,
Holmes Weddle & Barcott, PC, Anchorage, for Amicus
Curiae Alaska Council of School Administrators and
Association of Alaska School Boards.
Before: Bolger, Chief Justice, Winfree, Maassen, and
* [Borghesan,
Carney, Justices, and Matthews, Senior Justice.
Justice, not participating.]
MAASSEN, Justice.
I. INTRODUCTION
The Alaska Legislature passed a bill in 2018 that appropriated money for
public education spending for both the next fiscal year, FY2019, and the year after that,
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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FY2020. The second year's appropriation had a 2019 effective date. Governor Mike
Dunleavy took office in December 2018. He disputed the constitutionality of the second
year's appropriation - and the general practice known as forward funding - asserting
that it violated the annual appropriations model established by the Alaska Constitution.
TheAlaskaLegislativeCouncil, acting on behalfofthelegislature, sued the
governor, seeking a declaratory judgment that the governor violated his constitutional
duties by failing to execute the appropriations and an injunction requiring him to do so.
A nonprofit education advocacy group intervened in support of the appropriation bills
and the practice of forward funding. On cross-motions for summary judgment, the
superior court decided that the appropriations were consistent with the legislature's duty
to fund public education, that they did not violate any specific constitutional provision,
and that the governor's refusal to disburse funds pursuant to the appropriations violated
his duty to faithfully execute the laws. The court awarded attorney's fees to the
Legislative Council and the advocacy group as prevailing parties. The governor appeals
the court's grant of summary judgment and the award of attorney's fees to the advocacy
group.
We conclude that a requirement that funds be appropriated annually is
implied in the Alaska Constitution's text and was intended by the framers. We therefore
reverse the superior court's decision that the forward-funded appropriations are
constitutional. And because neither the Legislative Council nor the advocacy group is
a prevailing party, we vacate the superior court's attorney's fees awards.
II. FACTS AND PROCEEDINGS
A. Facts
In May 2018 the Thirtieth Alaska Legislaturepassed HouseBill 287, which
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appropriated funds for public education for the next two consecutive fiscal years,1
FY2019 and FY2020. The act's provisions took effect on July 1, 2018, except for the
FY2020 appropriations; they were given an effective date of July 1, 2019, more than a
year after the bill's passage. To be clear, the legislature did not appropriate public
education funds from the FY2019 general fund revenues to cover spending in both
2 rather, it in effect appropriated public education funds from two
FY2019 and FY2020;
successive years' general fund revenues to be spent in those two successive fiscal years.
This legislative strategy of "forward-funding" public education was
intended to resolve a specific and ongoing problem. The legislature had typically passed
the State's operating budget late in the legislative session (i.e. late spring),3 giving
Alaska's school districts little notice of how to budget for the upcoming school year.
And a budget passed by the legislature remains subject to the governor's veto, adding to
1 See AS 37.05.920 (defining fiscal year as beginning on July 1 and ending
on June 30 of the following year). Thus, for example, FY2020 is the period from July
1, 2019 to June 30, 2020.
2 Appropriating funds from the FY2019 general fund to cover education
spending in both FY2019 and FY2020 would have been constitutionally permissible.
This was the legislature's practice from 2010 through 2014. See Ch. 13, § 13(a), SLA
2010 (appropriating funds from the general fund to the public education fund); Ch. 41,
§ 26(n), SLA 2010 (same); Ch. 3, § 25(e), FSSLA 2011 (same); Ch. 15, § 26(f), SLA
2012 (same); Ch. 14, § 28(e), SLA 2013 (same); Ch. 16, § 28(c), SLA 2014 (same).
3 The Constitution requires that the legislature convene in late January and
adjourn "no later than one hundred twenty consecutive calendar days from the date it
convenes," with the possibility of a ten-day extension on a two-thirds vote of each house
and special sessions at the call of the governor or two thirds of the legislators. Alaska
Const. art. II, §§ 8, 9; see also AS 24.05.090 (setting start day as "third Tuesday in
January"); AS 24.05.150(b) (shortening constitutionally-allowed session length by
requiring legislature to adjourn "within 90 consecutive calendar days" from day it
convenes).
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the uncertainty. One of HB 287's sponsors, Representative Paul Seaton, described the
dilemma by reference to recent history:
In 2015, the [legislature] needed to come back in special
session to pass a second operating budget that included
education funding. In 2016, the state operating budget was
passed by the legislature on May 31 and signed by the
governor on June 28. Last session, the state operating budget
did not pass the [l]egislature until June 22 and [was] signed
by the [g]overnor on July 1. All this uncertainty for the
funding amount forces school districts to draft multiple
budgets. Anticipating low amounts requires districts to give
termination notices (pink slips) to non-tenured teachers by
[ ]
4
May 15 and tenured teachers by the last day of school.
According to Representative Seaton, "[a]n early, separate appropriation for education
that has existing funding identified would prevent these problems and will allow school
districts to finalize their budgets on time." The proposed bill was therefore "intended to
pass separately from the regular operating budget and early in the session to prevent
school districts from issuing mandatory teacher layoff notices." Support for HB 287
came from school boards and school districts across the state, as well as NEA-Alaska
(a union representing 13,000 Alaska teachers and administrators), the Alaska Council of
School Administrators, individual educators, school administrators, and parents, many
of whom described their own frustrations with the uncertain education-funding process.
Then-Governor Bill Walker's legislative director asked the Department of
Law for an opinion on the bill's constitutionality, and the attorney general advised that
the forward-funding provisions were lawful: "Although not common, it is permissible
4 Rep. Paul Seaton, Sponsor Statement of Proposed HB 287, 30th Leg., 1st
Sess. (Jan. 25, 2018). The law actually requires that tenured teachers be notified of a
"layoff or nonretention" in writing by May 15; non-tenured teachers must be notified no
later than "the last day of the school term." AS 14.20.140(a), (b).
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for the legislature to include in a budget bill appropriations [from future general funds]
5
for future fiscal years."
The attorney general reasoned that "[t]hese appropriations do
not bind a future legislature because a future legislature can always amend,
6
reappropriate, or repeal the future appropriations."
Governor Walker signed HB 287 into law on May 3, 2018, and it became
SLA 2018, Ch. 6. The forward-funding provisions - Chapter 6, §§ 4, 5(c), and 5(d)7
5 STATE OF ALASKA, DEP 'T OF LAW, OP. ATT 'Y GEN., HB 287:
Appropriations: Pupil education and transportation (May 1, 2018).
6 Id .
7 Chapter 6, §§ 4-5, provide:
Sec. 4. DEPARTMENT OF EDUCATION AND EARLY
DEVELOPMENT. The sum of $30,000,000 is appropriated
from the general fund to the Department of Education and
Early Development to be distributed as grants to school
districts according to the average daily membership for each
district adjusted under AS 14.17.410(b)(1)(A) - (D) for the
fiscal year ending June 30, 2020.
Sec. 5. FUND CAPITALIZATION. (a) The amount
necessary to fund the total amount for the fiscal year ending
June 30, 2019, of state aid calculated under the public school
funding formula under AS 14.17.410(b), estimated to be
$1,189,677,400, is appropriated from the general fund to the
public education fund (AS 14.17.300).
(b) The amount necessary, estimated to be $78,184,600, to
fund transportation of students under AS 14.09.010 for the
fiscal year ending June 30, 2019, is appropriated from the
general fund to the public education fund (AS 14.17.300).
(c) The amount necessary to fund the total amount for the
fiscal year ending June 30, 2020, of state aid calculated under
the public school funding formula under AS 14.17.410(b) is
(continued...)
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- appropriated two amounts from the general fund to the public education fund 8 : one
"calculated under the public school funding formula under AS 14.17.410(b)" and the
9
other in an "amount necessary to fund transportation of students under AS 14.09.010."
It also appropriated $30 million to the Department of Education and Early Development
as grants to ensure funding for public schools and the transportation of students for
10 A "Contingency" provision in Chapter 6, §§ 7-8, provided that the forward-
FY2020.
funded appropriations did not take effect until July 1, 2019, and were "contingent on
passage by the Thirtieth Alaska State Legislature and enactment into law of a version of
Senate Bill 26" (a bill related to the amount of funds that may be drawn from the
permanent fund earnings for state government).
Governor Mike Dunleavy was elected in November 2018. His initial
budget - submitted to meet a statutory deadline - largely adopted his predecessor's
numbers, including the forward-funded education appropriations for FY2020; it also
7 (...continued)
appropriated from the general fund to the public education
fund (AS 14.17.300).
(d) The amount necessary to fund transportation of students
under AS 14.09.010 for the fiscal year ending June 30, 2020,
is appropriated from the general fund to the public education
fund (AS 14.17.300).
8 The public education fund, created by statute in 2005, holds funds
appropriated for education from the general fund. See AS 14.17.300(a). "Money
appropriated to the fund does not lapse" and "may be expended only in aid of public
schools and for centralized correspondence study programs . . . and for transportation of
pupils." AS 14.17.300(b).
9 Ch. 6, §§ 5(c), 5(d), SLA 2018.
10 Ch. 6, § 4, SLA 2018.
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proposed forward funding education for FY2021. But the governor's amended budget
submitted two months later sought to reduce the education appropriations and repeal the
forward-funding provisions. The new attorney general issued an opinion that reached
11
a conclusion different from the Department of Law's advice on the same issue in 2018.
Citing Alaska's "well-established annual budgeting model" as shown by "[t]he Alaska
Constitution,courtdecisions,and historical practice,"theattorney general concluded that
the legislative attempt to forward fund education expenditures violated the constitutional
prohibition on dedicating revenues, the governor's right to strike or reduce
appropriations by veto, and statutes governing the budget and appropriations process.12
The legislature did not make a new education appropriation for FY2020,
instead relying on the previous year's forward funding for FY2020 while at the same
13 The governor, relying
timemaking another forward-funded appropriation for FY2021.
on the advice of his attorney general, asserted that there was no valid education
appropriation for FY2020 absent further legislative action, and he encouraged the
legislature to make a single-year appropriation.14
B. Proceedings
In July 2019, without compromising their differences on the legality of
11 STATE OF ALASKA, DEP 'T OF LAW, OP. ATT'Y GEN., FY20 Education
appropriation (May 8, 2019), http://www.law.state.ak.us/pdf/opinions/opinions
_2019/19-001_FY20-Education-appropriation.pdf.
12 Id.
13 See Ch. 1, §§ 33(i)-(j), FSSLA 2019 (effective July 1, 2020).
14 See Press Release, Office of Governor Mike Dunleavy, Failing to Fund
Education in Budget Ignores Constitution (May 8, 2019), https://gov.alaska.gov/
newsroom/2019/05/08/governor-dunleavy-failing-to-fund-education-in-budget-ignores-
constitution/.
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forward funding, the governor and the legislature negotiated a stipulation that would
ensure that public schools continued to be funded during FY2020. The stipulation
provided monthly disbursements from the State's general fund to the public education
fund so that Alaska's schools had money with which to operate while the underlying
constitutional controversy was adjudicated.
15 then filed a complaint for declaratory and
The Alaska Legislative Council
injunctive relief in superior court, along with a proposed order reflecting the parties'
stipulation. The complaint alleged that Governor Dunleavy, then-Commissioner of
Administration KellyTshibaka, andCommissionerofEducationand Early Development
Michael Johnson16 failed to disburse the duly appropriated education funds for FY2020,
a failure which the Council alleged would prevent public schools from operating during
the coming school year. The complaint brought three claims for relief, one for each of
the three appropriations made for FY2020 in § 4, § 5(c), and § 5(d) of Chapter 6, SLA
2018. The complaint alleged that the governor's failure to disburse the funds infringed
on the legislature's mandate to maintain a system of public schools under article VII,
section 1 of the Alaska Constitution and the legislature's power of appropriation under
article IX, section 13; that it violated the separation of powers doctrine; and that it
violated the governor's duty to faithfully execute the laws under article III, section 16.
The superior court immediately signed the stipulated order so that education funding
15 The Legislative Council is created by statute to serve "as a permanent
interim committee and service agency of the legislature." AS 24.20.010. It is composed
of equal numbers of senators and representatives, AS 24.20.020, and it has a number of
listed powers, including in some instances the authority "to sue in the name of the
legislature." AS 24.20.060(4)(F).
16 We refer to the defendants collectively as "the governor" unless the context
requires otherwise.
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17
could continue during the litigation's pendency.
In August 2019 the Coalition for Education Equity - identifying itself as
an Anchorage-based non-profit that "champions a quality, equitable and adequate public
education for every Alaska child through advocacy, policy development and legal
action" -moved to intervene in the lawsuit. Over the governor's objection, the superior
court allowed the Coalition to intervene (1) "in relation to the eventualities that may
come to pass if the Defendants prevail in this suit;" and (2) "as part of the cross summary
judgments that the present parties will be filing, addressing the issues already part of this
18
case."
The parties then moved for summary judgment. In a November 2019 order
the superior court ruled in favor of the Legislative Council and the Coalition, deciding
that the forward-funded appropriations at issue were consistent with the legislature's
constitutional authority and the governor therefore had a constitutional duty to disburse
them. The court declared that the defendants had "violated their duty to faithfully
17 The stipulated order meant that ultimately only the first of 12 installment
payments to public schools was delayed, and then only briefly. The first payment was
due by law on July 15, and the court signed the parties' stipulated order for continued
funding on July 16. See AS 14.17.610(a) (requiring that "[o]n or before the 15th day
of each of the first nine months of each fiscal year, one-twelfth of each district's state aid
shall be distributed").
18 The Coalition sought "[a]n order declaring that [the appropriations were]
a valid and constitutional exercise of the Legislature's authority to appropriate school
funding, that [the governor] ha[d] no lawful authority to impound or otherwise refuse to
disburse state funding in accordance therewith, and that [the governor's] failure to
disburse the appropriations . . . violate[d] the Education Clause and Faithful Execution
Clause of the Alaska Constitution." It also sought "[a] mandatory injunction directing
[the governor] to faithfully execute [the appropriations] and to immediately release state
funding in accordance therewith" and "an award of attorney's fees and costs."
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execute the law by failing to execute the forward-funding appropriations at issue
according to the statutory funding procedures." The court issued injunctions mandating
disbursal of the funds "in accordance with the appropriations" and prohibiting the
governor "from impounding or withholding money from the appropriations"; it also
issued an order requiring the governor to provide the Legislative Council "an accounting
of all the expenditures of money pursuant to the appropriations."
The Legislative Council and the Coalition moved for attorney's fees as
prevailing parties. The court granted the motions, awarding attorney's fees to the
Legislative Council under the partial reimbursement schedule of Alaska Civil Rule 82
and awarding full fees to the Coalition under the constitutional litigant provisions of
19 The governor appealed the superior court's summary judgment
AS 09.60.010(c).
20
decision and its award of attorney's fees to the Coalition under AS 09.60.010(c).
III. STANDARD OF REVIEW
"We review summary judgment rulings de novo . . . ."21 We decide
constitutional issues by "applying our independent judgment."22
"In doing so we will
adopt ' "a reasonable and practical interpretation in accordance with common sense"
19 The statute provides, with some qualifications, that "[i]n a civil action or
appeal concerning the establishment, protection, or enforcement of a right under the
United States Constitution or the Constitution of the State of Alaska, the court . . . shall
award . . . full reasonable attorney fees and costs to a claimant, who . . . has prevailed in
asserting the right." AS 09.60.010(c)(1).
20 The governor does not appeal the Rule 82 award of attorney's fees to the
Legislative Council.
21 Wielechowskiv.State, 403 P.3d 1141, 1146 (Alaska2017) (quoting Seybert
v. Alsworth , 367 P.3d 32, 36 (Alaska 2016)).
22 Alaska Legis. Council v. Knowles , 21 P.3d 367, 370 (Alaska 2001).
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based upon "the plain meaning and purpose of the provision and the intent of the
23
framers." ' "
"Moreover, because these are questions of law, we will consider
24 We also "apply the independent judgment standard of
precedent, reason, and policy."
review in considering whether the trial court applied the law correctly in awarding
attorney's fees under AS 09.60.010(c)."25
IV. DISCUSSION
A. The Forward Funding At Issue Is Inconsistent With The Annual
Budgeting Process Established By Article IX Of The Alaska
Constitution.
"Our analysis of a constitutional provision begins with, and remains
26 "Constitutional provisions should be
grounded in, the words of the provision itself."
given a reasonable and practical interpretation in accordance with common sense. [We]
. . . look to the plain meaning and purpose of the provision and the intent of the
framers."27 "We do not interpret constitutional provisions in a vacuum - the document
is meant to be read as a whole with each section in harmony with the others,"28 and "we
have noted that often what is implied is as much a part of the constitution as what is
23 Id. (quoting Cook v. Botelho, 921 P.2d 1126, 1128-29 (Alaska 1996)).
24 Id.
25 State v. Schmidt, 323 P.3d 647, 655 (Alaska 2014).
26 Wielechowski, 403 P.3d at 1146 (quoting Hickel v. Cowper, 874 P.2d 922,
927 (Alaska 1994)).
27 Hickel, 874 P.2d at 926 (quoting ARCO Alaska, Inc. v. State, 824 P.2d 708,
710 (Alaska 1992)).
28 Forrer v. State, 471 P.3d 569, 585 (Alaska 2020).
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29
expressed." Finally, when we are reviewing a legislative enactment, "constitutionality
is presumed, and doubts are resolved in favor of constitutionality." 30
The parties focus on four sections of the Alaska Constitution as most
relevant to the general question of forward funding. First, the Dedicated Funds Clause,
article IX, section 7, provides that "[t]he proceeds of any state tax or license shall not be
dedicated to any special purpose, except as provided in section 15 of this article or when
required by the federal government for state participation in federal programs."
Second, the Budget Clause, article IX, section 12, provides:
The governor shall submit to the legislature, at a time fixed
by law, a budget for the next fiscal year setting forth all
proposed expenditures and anticipated income of all
departments, offices, and agencies of the State. The
governor, at the same time, shall submit a general
appropriation billtoauthorizetheproposed expenditures, and
a bill or bills covering recommendations in the budget for
new or additional revenues.
Third, the Appropriations Clause, article IX, section 13 (actually entitled
"Expenditures"), provides:
No money shall be withdrawn from the treasury except in
accordance with appropriations made by law. No obligation
for the payment of money shall be incurred except as
authorized by law. Unobligated appropriations outstanding
at the end of the period of time specified by law shall be void.
Last, the Veto Clause, article II, section 15, provides that "[t]he governor
may veto bills passed by the legislature" and "may, by veto, strike or reduce items in
appropriation bills."
29 Pub. Def. Agency v. Superior Ct., 534 P.2d 947, 950 (Alaska 1975).
30 Brandon v. Corr. Corp. of Am. , 28 P.3d 269, 275 (Alaska 2001).
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The Legislative Council argues that these clauses "impose[] no temporal
limits on the legislature's power of appropriation" and that "[t]he governor has failed to
allege a violation of an enumerated clause of the Alaska Constitution." It argues that the
challenged appropriations were permissible under the Dedicated Funds Clause because
the clause only prohibits the dedication of revenues from "[t]he proceeds of any state tax
or license" or specific revenue streams, whereas the appropriations at issue in this case
came from the general fund. The Legislative Council also contends that the governor's
objections are based on the misconception that forward-funded appropriations, once
approved, cannot be reconsidered by the next year's legislature. It argues that "the
legislature has a long history of approving and then amending or repealing forward-
funded education appropriations," reflecting the reality that forward funding does not
meaningfully impair successive legislatures' ability to adjust their budget priorities in
light of current circumstances.
As for the Budget Clause, the Legislative Council notes that it imposes
temporal obligations only on the governor: "The governor shall submit . . . a budget for
31
the next fiscal year" and "[t]he governor . . . shall submit a general appropriation bill."
It argues that the clause places no such constraints on the legislature's power of
appropriation and that the limit placed on the governor "in no way binds the legislature
or requires thelegislaturetoenactappropriations consistent with thegovernor'srequest."
It contends that the Appropriations Clause likewise contains no language expressly
prohibiting forward-funded appropriations; the clause provides that no appropriations
may be made "except as authorized by law."32 The Legislative Council maintains that
31 Alaska Const. art. IX, § 12.
32 Alaska Const. art. IX § 13.
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the "spirit of the appropriations clause" is also not violated because "even after passage
of [the appropriations at issue], public education funding continued to be considered a
part of the legislature's normal budget process."
Finally, with regard to the governor's veto power, the Legislative Council
argues that the power "is not personal" to the governor who happens to be in office on
a law's effective date; the power belongs to "the governor in office at the time the
33 The Legislative Council observes that "governors are regularly
legislation is passed."
required to enforce and execute laws they did not sign into law"; therefore, it argues,
because Governor Walker had the opportunity to veto the forward-funded education
appropriations and chose not to, the veto power was not circumvented - it was simply
not exercised.
We acknowledge that none of the Constitution's budgetary clauses
expressly prohibit forward funding. We reiterate, however, that "often what is implied
is as much a part of the constitution as what is expressed."34 Implicit in the budgetary
clauses is a requirement that the budget be determined annually; when examined
together, the budgetary clauses, the sources from which they were drawn, the underlying
policies they were designed to promote, and our case law all support this conclusion.
The Budget Clause introduces the time frame in which the budgetary
clauses of article IX operate: "the next fiscal year."35 The governor's budget and the
governor's general appropriation bill begin the process; the budget must set forth "all
33 We agree with the Legislative Council on this point. If the veto power were
particular to each governor, similar disputes would arise each time an intervening
election put in office a governor other than the one who approved the budget.
34 Pub. Def. Agency, 534 P.2d at 950.
35 Alaska Const. art. IX, § 12.
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proposed expenditures and anticipated income of all departments, offices, and agencies
36
of the State" for the next fiscal year.
The legislature is free to create its own budget in
response, and its general appropriation bill may differ from that proposed by the
37 But the governor may veto the bill or portions of it by line-item deletions or
governor.
reductions.38
The Appropriations Clause reinforces this process by prohibiting any
expenditures not "in accordance with appropriations made by law."39 At the same time,
the Dedicated Funds Clause "seeks to preserve an annual appropriation model" by
ensuring that the legislature is "free to appropriate all funds for any purpose on an annual
basis."40 Together, these clauses "create a strong executive branch with 'a strong control
on the purse strings' of the [S]tate"41 and limit the legislature's power to impose current
42
spending priorities on future governors and legislatures.
36 Id .
37 See id. (providing that the governor will "submit" a budget to the legislature
and "a bill or bills covering recommendations in the budget"); Alaska Const. art. II, § 15
(providing that the governor may veto items in appropriation bills).
38 Alaska Const. art. II, § 15.
39 Alaska Const. art. IX, § 13.
40 Sonneman v. Hickel, 836 P.2d 936, 940 (Alaska 1992).
41 Thomas v. Rosen, 569 P.2d 793, 795 (Alaska 1977) (quoting 3 Proceedings
of the Alaska Constitutional Convention (PACC) 1740 (Jan. 11, 1956) (statement of Del.
Steve McCutcheon)).
42 "It is a settled principle of public law that one legislature cannot bind
another . . . ." 3 ALASKA STATEHOOD COMM'N, CONSTITUTIONAL STUDIES, pt. IX at 15
(1955).
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A report prepared for the Constitutional Convention by expert consultants
in public administration provides insight into the policies underlying the Constitution's
43 The report emphasizes the planning function of an executive
budgetary clauses.
budget, which requires the governor to gather whatever "information . . . is necessary for
budget formulation fromother elected officials as well as the legislature and judiciary."44
The executive budget thus has the "important objective . . . of comprehensiveness . . . so
that the financial plan of the state is not considered piecemeal. The legislature should be
able to see at one time what the total financial needs and tax burden of the state are to
be."45 Earmarking, the report cautions, prevents "over-all planning of the fiscal program
43 Id. at 1-33 (entitled "State Finance: A staff paper prepared by Public
Administration Service for the Delegates to the Alaska Constitutional Convention"
[hereinafter State Finance report]). These staff papers "were prepared under the
authority of the Alaska territorial legislature for use at the constitutional convention,"
"were mailed to all delegates before the convention convened and were available for use,
and often referred to, in the proceedings." State v. Alex , 646 P.2d 203, 209 n.5 (Alaska
1982). We regularly rely on these staff papers as evidence of the framers' intent. See,
e.g., Forrer v. State , 471 P.3d 569, 574-76 (Alaska 2020) (citing State Finance report in
discussing framers' intent in drafting art. IX, § 8, addressing state debt); State v.
Ketchikan Gateway Borough, 366 P.3d 86, 92 & n.44 (Alaska 2016) (citing State
Finance report as evidence of the framers' recognition of "the importance of preserving
state control over state revenue"); City of Fairbanks v. Fairbanks Convention &Visitors
Bureau, 818 P.2d 1153, 1158 (Alaska 1991) (citing State Finance report as evidence of
"motivations behind the [Alaska Constitution's] ban on dedicated revenues"); Alex , 646
P.2d at 209 (citing State Finance report as evidence of framers' intent in drafting article
IX, § 7).
44 ALASKA STATEHOOD COMM'N, supra note 42, at 25-26.
45 Id. at 26-27.
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46
of the state" and "should be avoided at all costs." The report recommends that the
legislature be free to change the budget submitted by the governor, subject "[o]f course"
to "the governor's power to veto items whether in whole or in part." 47
Although thislanguageaddresses primarily theexecutive's budgeting task,
it illustrates the importance an annual budget held for the constitutional delegates. The
delegatesenvisionedanannualbudgetthatcomprehensivelyaddresses theState's current
needs and the resources currently available to meet those needs. The clause counsels
against piecemeal consideration and earmarked funds. And while it specifies only the
governor's responsibility, it envisions that the legislature, like the governor, should be
able to view all the State's needs and resources at once, being free to change the budget
as it sees fit subject to the governor's veto.
Necessarily implicit in this model is theideathat thegovernor's budget, and
the legislative process in response to it, take place within the same time frame: "the next
fiscal year," i.e. the year for which the governor has collected information on "all
48 If the legislature appropriates funds
proposed expenditures and anticipated income."
from a future fiscal year's general fund revenues, it circumvents the planning function
of the executive budget and undercuts an important aspect of the constitutional design:
protecting the State's flexibility in the future to respond to then-present needs with then-
present resources. The advance dedication of future fiscal year revenues to a particular
end takes from future governors and future legislatures the full measure of power and
responsibility each is intended to have over the budgets generated during their respective
46 Id. at 30.
47 Id . at 31.
48 See Alaska Const. art. IX, § 12.
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49
tenures. While the legislature may have a history of approving and then amending or
repealing forward-funded education appropriations, astheLegislativeCouncil contends,
it is easier to block a proposal in the first instance than to repeal or change it once it has
been enacted. Blocking a proposal requires only a majority of one house of the
legislature, or the governor's sustainable veto; reducing or repealing an appropriation
that has already been enacted requires a majority of both houses and the governor's
50 Theseadditional obstacles seemincompatiblewith theannual budgeting
acquiescence.
model our Constitution contemplates.
We have recognized this in past cases, in which we have repeatedly
observed that the Dedicated Funds Clause, the Appropriations Clause, and the Veto
Clause "[t]ogether . . . govern the legislature's and the governor's 'joint responsibility
51 In Sonneman v.
. . . to determine the State's spending priorities on an annual basis.' "
Hickel, for example, we noted that "[t]he constitutional clause prohibiting dedicated
funds seeks to preserve an annual appropriation model which assumes that not only will
the legislature remain free to appropriate all funds for any purpose on an annual basis,
49 See Sonneman v. Hickel, 836 P.2d 936, 938 (Alaska 1992) ("The
constitutional convention committee which drafted the prohibition on the dedication of
funds commented that the reason for the prohibition is to preserve control of and
responsibility for state spending in the legislature and the governor."); see also State v.
Ketchikan Gateway Borough , 366 P.3d 86, 101 (Alaska 2016) ("[T]he constitutional
delegates intentionally established a system in which both the legislature and the
governor would consider how to spend state money each year.").
50 See Alaska Const. art. II, § 14 ("No bill may become law without an
affirmative vote of a majority of the membership of each house."); Alaska Const. art. II,
§ 15 (providing that governor may veto bills).
51 KetchikanGatewayBorough,366P.3dat101(second omission in original)
(quoting Simpson v. Murkowski, 129 P.3d 435, 447 (Alaska 2006)).
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but that government departments will not be restricted in requesting funds from all
52 53
sources."
We recognized in Southeast Alaska Conservation Council v. State that "the
reach of the dedicated funds clause might be extended to statutes that, while not directly
violating the clause by dedicating revenues, in some other way undercut the policies
54
underlying the clause."
Reading the relevant constitutional provisions together, and in light of the
"purpose of the provision[s] and the intent of the framers,"55 we conclude that the budget
clauses contain an annual appropriation model that promotes comprehensive planning
and budgeting flexibility. The forward-funded appropriations at issue are incompatible
with this constitutional model.
B. Education Appropriations Are Subject To The Annual Appropriation
Model That Governs All Legislative Budgeting.
The Alaska Constitution's Public Education Clause, article VII, section 1,
mandates the creation of a public school system: "The legislature shall by general law
establish and maintain a system of public schools open to all children of the State, and
may provide for other public educational institutions." We have repeatedly "recognized
the dual aspect of [this] constitutional provision[:] It imposes a duty upon the state
52 836 P.2d at 940 (concluding that act restricting agency from seeking
appropriations for capital improvements from particular fund violated dedicated funds
clause).
53 202 P.3d 1162 (Alaska 2009).
54 Id . at 1170.
55 See supra note 29 and accompanying text.
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56
legislature, and it confers upon Alaska school age children a right to education." The
first version of the clause presented to the Constitutional Convention imposed this duty
57 But the Committee on Style and Drafting
on "the state" rather than "the legislature."
recommended that the clause "pinpoint [the duty] to a particular division of the state
government," and the provision was adopted in its current form, requiring that the
establishment and maintenance of the public school system be specifically a legislative
responsibility.58
This case therefore requires us to consider whether, as the superior court
determined, the Constitution allows room for legislative flexibility - that is, deviation
from the annual appropriation model - in situations like that presented here. The
Legislative Council argues that "[t]he need for flexibility in providing public education
has been recognized by both the Alaska Supreme Court and the United States Supreme
Court, each holding that given the 'complexity of the problems of financing and
managing a statewide public school system . . . within the limits of rationality, the
59
legislature's efforts to tackle the problems should be entitled to respect.' "
But we must conclude that the legislature's constitutional duty to fund
public education does not exempt the subject from the normal appropriation rules. In
56 Hootch v. Alaska State-Operated Sch. Sys. , 536 P.2d 793, 799 (Alaska
1975); Breese v. Smith , 501 P.2d 159, 167 (Alaska 1972) (stating that "article VII,
section 1 . . . guarantees all children of Alaska a right to public education").
57 See Hootch, 536 P.2d at 800-01 (quoting 6 PACC App. V at 68 (Dec. 15,
1955) (Committee Proposal No. 7)).
58 Id. at 801.
59 See id. at 803-04 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 42 (1973)).
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60
State v. Alex we considered an equally specific constitutional mandate of legislative
responsibility in the area of natural resources: "The legislature shall provide for the
utilization, development, and conservation of all natural resources belonging to the State
61 We rejected the argument that this
. . . for the maximum benefit of its people."
directive authorized an otherwise impermissible dedication of funds.62 In Wielechowski
63
v. State, though not dealing with an explicit constitutional directive to the legislature,
we held that "[t]he legislature's use of Permanent Fund income is subject to normal
appropriationand vetobudgetary processes."64 Wedeclined to "createan anti-dedication
clause exception that would swallow the rule," holding instead that "the Permanent Fund
dividend program must compete for annual legislative funding just as other state
programs."65
We see no textual justification for a different rule in the education context.
And allowing this form of forward funding for education a year in advance would open
the door for forward funding in other contexts and more years in advance, weakening the
60 646 P.2d 203 (Alaska 1982).
61 Alaska Const. art. VIII, § 2.
62 Alex , 646 P.2d at 210-11.
63 403 P.3d 1141 (Alaska 2017).
64 Id. at 1143, 1152. The constitutional provision at issue in Wielechowski
provides, "At least twenty-five percent of all mineral lease rentals, royalties, royalty sale
proceeds, federal mineral revenue sharing payments and bonuses received by the State
shall be placed in a permanent fund . . . . All income from the permanent fund shall be
deposited in the general fund unless otherwise provided by law." Alaska Const. art. IX,
§ 15.
65 Wielechowski, 403 P.3d at 1152.
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66
annual budgeting process intended by the Constitution's framers.
Weacknowledgetheimportanceofprovidingschool districtswith advance
notice of their annual budget, and we agree that the Constitution may allow for some
degree of creativity to ensure this is accomplished. But there are avenues that do not
raise constitutional concerns. For example, as was the practice from 2010 to 2014, the
legislature may appropriate public education funds from the upcoming fiscal year to
67 Unlike the forward funding practice
cover expenditures in the subsequent fiscal year.
at issue here, this would ensure that education funds were set aside well in advance of
distribution -giving school districts time to plan their budgets -without appropriating
funds from future budgetary cycles. Alternatively, the legislature may prioritize
education funding earlier in the legislative session to allow school districts more time
to prepare for the upcoming school year.
Regardless, becauseeducationappropriationsaresubjecttothesameannual
appropriation model that governsalllegislativebudgeting, theforward-funded education
66 See Sonneman v. Hickel , 836 P.2d 936, 938 ("But if allocation is permitted
for one interest the denial of it to another is difficult, and the more special funds are set
up the more difficult it becomes to deny other requests until the point is reached where
neither the governor nor the legislature has any real control over the finances of the
state." (quoting 6 PACC App. V at 111 (Dec. 16, 1955))).
67 See Ch. 13, § 13(a), SLA 2010 (appropriating upcoming fiscal year general
revenues to statutory public education fund for use in upcoming and subsequent fiscal
years); Ch. 41, § 26(n), SLA 2010 (same); Ch. 3, § 25(e), FSSLA 2011 (same); Ch. 15,
§ 26(f), SLA 2012 (same); Ch. 14, § 28(e), SLA 2013 (same); Ch. 16, § 28(c), SLA 2014
(same). The legislature adopted this practice again in its 2022 appropriations bill. HB
281§ 1, 16, 32d Leg., 1st Sess. (2022).
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appropriations at issue here are unconstitutional. 68
C. Because Neither The Legislative Council Nor The Coalition Remains
A Prevailing Party, We Vacate The Superior Court's Attorney's Fees
Awards.
Because we reverse the superior court's determination that the
appropriations are constitutional, neither the Legislative Council nor the Coalition
remains a prevailing party in the superior court litigation. We therefore vacate the
attorney's fees awards.
V. CONCLUSION
WeREVERSEthesuperior court's order onsummaryjudgment, VACATE
the final judgment, and VACATE the attorney's fees awards.
68 The Legislative Council argues that regardless of the appropriations'
constitutionality, the governor violated his duty to faithfully execute the laws by
declining to execute the appropriations on the advice of his attorney general. We
reiterate our earlier holding that an attorney general's opinion is not alone sufficient to
establish that a law is "clearly unconstitutional." O'Callaghan v. Coghill, 888 P.2d
1302, 1303 (Alaska 1995). Here, however, the governor and the Legislative Council
negotiated a stipulation by which the challenged law would be followed while the
constitutional issues were litigated, and the superior court approved the stipulation just
a day after the appropriation's first payout was due. Under these unique circumstances
we conclude that if there was a failure to faithfully execute the laws it was necessarily
de minimis and does not merit further discussion.
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