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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Madilyn Short, Riley Von Borstel, Kjrsten Schindler, and Jay-Mark Pascua v. State of Alaska, Office of Management & Budget and Department of Administration; and Governor Michael J. Dunleavy, in an official capacity (9/30/2022) sp-7622
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are r equested to bring errors to the attention of the Clerk of the Appellate C ourts,
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
MADILYN SHORT, RILEY VON )
BORSTEL, KJRSTEN SCHINDLER, and ) Supreme Court No. S-18333
JAY-MARK PASCUA, )
) Superior Court No. 3AN-22-04028 CI
Appellants, )
) O P I N I O N
v. )
) No. 7622 - September 30, 2022
STATE OF ALASKA, OFFICE OF )
MANAGEMENT & BUDGET and )
)
DEPARTMENT OF ADMINISTRATION;
and GOVERNOR MICHAEL J. )
)
DUNLEAVY, in an official capacity,
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Adolf V. Zeman, Judge.
Appearances: Jahna M. Lindemuth, Scott M. Kendall, and
Samuel G. Gottstein, Cashion Gilmore & Lindemuth,
Anchorage, for Appellants. Katherine Demarest and
Margaret Paton Walsh, Assistant Attorneys General,
Anchorage, and Treg R. Taylor, Attorney General, Juneau,
for Appellees. Kevin Cuddy, James E. Torgerson, and
Connor R. Smith, Stoel Rives LLP, Anchorage, for Amicus
Curiae Alaska Legislative Council.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
WINFREE, Chief Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Alaska's annual budgetary "sweep" is a constitutionally mandated process
requiring certain unappropriated funds to be placed in the Constitutional Budget Reserve
(CBR), akin to a State savings account. A decade ago the Legislature created and funded
the Higher Education Investment Fund (HEIF) to provide annual grants and scholarships
to students pursuing post-secondary education in Alaska. The HEIF later was identified
as potentially eligible for a sweep of its unappropriated funds. After the Legislature
failed in 2021 to garner the supermajority vote required to prevent the sweep, a group
of students (the Students) sued the Governor in his official capacity, the Office of
Management and Budget (OMB), andtheDepartmentofAdministration(collectively the
Executive Branch), alleging that the HEIF was not sweepable. The superior court agreed
with the Executive Branch, and the Students appeal. Because a previous case
interpreting the constitutional provision governing the CBR controls and we decline to
reject that precedent, we affirm the superior court's determination that the HEIF is
sweepable.1
II. LEGAL BACKGROUND
A. Appropriations In Alaska
The power to appropriate state funds is vested in the legislature.2
But the
1 This appeal was expedited and immediately after oral argument we issued
a summary order affirming the superior court's decision, with an explanatory decision
to follow. Short, et al. v. Dunleavy, et al. , No. S-18333 (Alaska Supreme Court Order,
May 3, 2022). This is the explanatory decision.
The legislature has since amended the HEIF statute, removing the HEIF
from the general fund and thus making it ineligible for the sweep. Ch. 15, § 3 SLA 2022.
Our decision reflects the statutes in place during the proceedings underlying this appeal.
2 Alaska Const. art. IX, § 12 (instructing governor to submit appropriation
(continued...)
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Alaska Constitution imposes limits on that appropriation power and the State's power
to spend generally. Article IX, section 13 prohibits expenditures "from the treasury
except in accordance with appropriations made by law." Article IX, section 16 caps
annual spending in certain situations. Article IX, section 7, the anti-dedication clause,
prohibits the dedication of "any state tax or license" to "any special purpose." And
Article II, section 15 authorizes the governor to "by veto, strike or reduce items in
appropriation bills." We recently stated that the Constitutional structure is based on an
annual appropriations model. 3
B. The CBR And Relevant Case Law
1. The CBR was established in 1990.
As another limiton the State's spending power, in the 1990 general election
voters amended the Alaska Constitution by adopting article IX, section 174 establishing
2 (...continued)
bill and anticipated budget to legislature); Alaska Const. art. II, § 13 (providing that
"[b]ills for appropriations shall be confined to appropriations"); see also Alaska Legis.
Council v. Knowles, 21 P.3d 367, 371 (Alaska 2001) (noting Alaska Constitution "gives
the legislature the power to legislate and appropriate" (footnote omitted)).
3 See State v. Alaska Legis. Council, et al., ___ P.3d ___, Op. No. 7612,
2022 WL 3331488 (Alaska Aug. 12, 2022) (holding legislature's forward funding
appropriation of future fiscal year monies unconstitutional because constitution requires
annual appropriations); cf. Sonneman v. Hickel, 836 P.2d 936, 938 (Alaska 1992) ("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 Proceedings of the Alaska Constitutional
Convention App. V at 111 (Dec. 16, 1955))).
4 1990LegislativeResolveNo.129(S.J.R.5); seeHickelv. Halford, 872 P.2d
171, 173 (Alaska 1994). Section 17 "was placed on the ballot after being passed by a
legislative resolution approved by a two-thirds vote of each house of the 1990
(continued...)
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5
the Budget Reserve Fund, commonly known as the CBR. Section 17 was
4 (...continued)
legislature." Id.
5 Section 17 states in full:
(a) There is established as a separate fund in the State
treasury the [CBR]. Except for money deposited into the
permanent fund under Section 15 of this article, all money
received by the State after July 1, 1990, as a result of the
termination, through settlement or otherwise, of an
administrative proceeding or of litigation in a State or federal
court involving mineral lease bonuses, rentals, royalties,
royalty sale proceeds, federal mineral revenue sharing
payments or bonuses, or involving taxes imposed on mineral
income, production, or property, shall be deposited in the
[CBR]. Money in the [CBR] shall be invested so as to yield
competitive market rates to the fund. Income of the fund
shall be retained in the fund. Section 7 of this article does not
apply to deposits made to the fund under this subsection.
Money may be appropriated from the fund only as authorized
under (b) or (c) of this section.
(b) If the amount available for appropriation for a fiscal year
is less than the amount appropriated for the previous fiscal
year, an appropriation may be made from the [CBR].
However, the amount appropriated from the fund under this
subsection may not exceed the amount necessary, when
added to other funds available for appropriation, to provide
for total appropriations equal to the amount of appropriations
made in the previous calendar year for the previous fiscal
year.
(c) An appropriation from the [CBR] may be made for any
public purpose upon affirmative vote of three-fourths of the
members of each house of the legislature.
(d) If an appropriation is made from the [CBR], until the
(continued...)
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enacted as "a response to a perceived impending fiscal crisis resulting from a growing
6
gap between State spending levels and general fund revenues."
Its purpose "was to
removecertain unexpectedincomefromtheappropriationspower ofthelegislature[]and
7 The superior court succinctly described the
to save that income for future need."
constitutional provision: "[S]ection 17 created a government savings account accessible
by the legislature under two circumstances; however, any money withdrawn from the
CBR must be repaid."
Section 17 has four subsections. Subsection (a), establishing the CBR and
its funding sources, instructs that "[m]oney may be appropriated from the fund only as
authorized under" subsections (b) or (c).8 Subsection (b) authorizes appropriations by
a majority vote of both houses of the legislature "[i]f the amount available for
appropriation for a fiscal year is less than the amount appropriated for the previous fiscal
year."9 Subsection (c) authorizes appropriations "for any public purpose upon
10
affirmative vote of three-fourths of the members of each house of the legislature."
Subsection (d), the focus of this appeal, requires that money withdrawn from the CBR
be repaid with "money in the general fund available for appropriation at the end of each
5 (...continued)
amount appropriated is repaid, the amount of money in the
general fund available for appropriation at the end of each
succeeding fiscal year shall be deposited in the [CBR]. The
legislature shall implement this subsection by law.
6 Halford, 872 P.2d at 177 n.9.
7 Id. at 177 (footnote omitted).
8 Alaska Const. art. IX, § 17(a).
9 Id. § 17(b); see id. art. II, § 14.
10 Id. art. IX, § 17(c).
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11
succeeding fiscal year." It also instructs: "The legislature shall implement this
subsection by law." 12
The repayment provision in subsection 17(d) is known as the "sweep";
excess money in State general fund accounts at the end of each fiscal year is "swept" into
the CBR. The legislature frequently uses its subsection 17(c) power to offset the sweep
by a three-fourths vote passing a "reverse sweep." When a reverse sweep occurs, the
money withdrawn from the general fund accounts and swept into the CBR at the end of
one fiscal year is immediately appropriated back out of the CBR at the beginning of the
next fiscal year and returned to the general fund accounts from which it came. As the
Director of the Office of Management and Budget explained: "When the reverse sweep
passes, the only 'sweep' that occurs is an accounting event involving a reconciliation of
accounts for the end of a fiscal year."
2. Hickel v. Cowper held that legislative enactment of section 17
was unconstitutional.
In 1994 the legislature enacted AS 37.10.420, attempting to define terms
article IX, section 17 uses, including "amount available for appropriation";13
11 Id. § 17(d).
12 Id.
13 AS 37.10.420(a)(1) (defining "amount available for appropriation" and
"funds available for appropriation" as "(A) the unrestricted revenue accruing to the
general fund during the fiscal year; (B) general fund program receipts as defined in
AS 37.05.146; (C) the unreserved, undesignated general fund balance carried forward
from the preceding fiscal year that is not subject to the repayment obligation imposed by
art. IX, [§] 17(d) . . .; and (D) the balance in the statutory budget reserve fund established
in AS 37.05.540").
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----------------------- Page 7-----------------------
subsections (b) and (d) both use the phrase "available for appropriation." 14
When AS 37.10.420 was challenged the superior court found it
15 The primary issue before us was
unconstitutional; the State petitioned for our review.
"the meaning of the term 'amount available for appropriation' as used in article IX,
[sub]section 17(b)."16 After considering the subsection's plain language, its purposes,
its legislative history, and contemporaneous evidence about voters' understanding of the
constitutional amendment, we concluded:
[T]he "amount available for appropriation" within the
meaning of article IX, section 17 of the Alaska Constitution
includes all monies over which the legislature has retained
the power to appropriate and which require further
appropriation before expenditure. In addition, all amounts
actually appropriated, whether or not they would have been
considered available prior to appropriation, are available
within the meaning of section 17.[17]
We accordingly held that AS 37.10.420(a)(1)'s contrary definition of "amount available
for appropriation" was unconstitutional.18
14 See Alaska Const. art. IX, § 17(b) ("If the amount available for
appropriation for a fiscal year is less than the amount appropriated for the previous fiscal
year, an appropriation may be made from the [CBR]." (emphasis added)); id. § 17(d) ("If
an appropriation is made from the [CBR], until the amount appropriated is repaid, the
amount of money in the general fund available for appropriation at the end of each
succeeding fiscal year shall be deposited in the [CBR]." (emphasis added)).
15 Hickel v. Cowper, 874 P.2d 922, 924-25 (Alaska 1994).
16 Id. at 926.
17 Id. at 935.
18 Id.
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Weelaborated that the"amount availablefor appropriation"included "trust
receipts, 'restricted' accounts within the general fund which require further legislative
appropriation before they can be expended, and the permanent fund earnings reserve
19 We further explained that funds likethosefor Railbeltenergy, Alaska marine
account."
highway system vessel replacement, and educational facilities maintenance and
construction all were "available for appropriation" within the meaning of section 17(b)
because, although they were established as "restricted funds"within the general fund and
consisted of money appropriated to them by the legislature, further legislative
appropriations were necessary to support any expenditures from the funds.20 But we
explained that the oil and hazardous substance release response fund was not available
for appropriation because the legislature had made the entire fund available for
expenditure without requiring further legislative action.21
We also considered the constitutionality of AS 37.10.420(b), designating
the means for repaying the CBR under article IX, section 17(d) (the "sweep"
22 The statute read:
provision).
If the amount appropriated from the [CBR] has not been
repaid under [subsection 17(d)], the Department of
Administration shall transfer to the [CBR] the amount of
money comprising the unreserved, undesignated general
fund balance to be carried forward as of June 30 of the fiscal
year, or as much of it as is necessary to complete the
repayment. The transfer shall be made on or before
19 Id.
20 Id. at 936.
21 Id. at 933.
22 Id. at 936.
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December 16 of the following fiscal year. [23]
Notably, the "unreserved, undesignated general fund balance" language was the same
as that used in AS 37.10.420(a)(1) to define "amount available for appropriation" under
24 With respect to AS 37.10.420(b), we determined that the statutory
subsection 17(b).
definition applicable to section 17(d) incorrectly "exclude[d] restricted funds within the
general fund from the calculation of the amount available to pay back appropriations
from the [CBR]."25 We stated: "[S]ome of these funds remain 'available for
appropriation' within the meaning of section 17."26 We saw "no reason to give 'available
for appropriation' a different meaning in subsection (d) than we did in subsection (b),"
though we noted that only monies in the general fund were subject to the sweep.27
Alaska Statute 37.10.420(b) thus was unconstitutional because it "fail[ed] to consider all
amounts which [were] 'available for appropriation' within the meaning of section 17 in
determining the State's repayment obligation."28
In Cowper we made a final point regarding future disputes: "The
availability of funds not specifically discussed . . . must be determined in accordance
with this opinion."29 The parties nonetheless sharply disagree whether Cowper controls
23 AS 37.10.420(b) (emphasis added).
24 Compare AS 37.10.420(a)(1)(C), with AS 37.10.420(b).
25 Cowper, 874 P.2d at 936.
26 Id.
27 Id. at 936 n.32.
28 Id. at 936.
29 Id. at 935.
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30
this case. Because the HEIF is housed within the general fund, the core issue is not
whether subsection 17(d) should be read to include certain restricted funds within the
31 Rather, the
general fund because, as Cowper instructs, that is the correct reading.
relevant questions are whether the HEIF, enacted after Cowper, is analogous to a
restricted fund within the general fund and therefore is available for appropriation, and,
if so, whether Cowper should be reconsidered and rejected.
III. FACTS AND PROCEEDINGS
A. Undisputed Facts
1. The legislature established the HEIF in 2012.
TheHEIFwas establishedin 2012to makepayments supporting theAlaska
30 See infra Part III.A.1 (explaining establishment of HEIF). The Students
briefly seem to argue that the HEIF is not in the general fund: "Although the legislature
by statute later created the HEIF as a subfund within the general fund, it is unlikely they
were using the term 'general fund' in the same way as it was used in section 17(d)." The
Executive Branch correctly notes that this "suggestion is meritless." There is only one
general fund, and the HEIF was "established in the general fund" in 2012, over 20 years
after the CBR amendment's adoption. See AS 37.14.750; Hickel v. Halford, 872 P.2d
171, 173 (Alaska 1994). We "presume 'that the legislature intended every word,
sentence, or provision of a statute to have some purpose, force, and effect,' " and we
"consider[] the meaning ofthestatute'slanguage, its legislative history, and its purpose."
Roberge v. ASRC Constr. Holding Co. , 503 P.3d 102, 104 (Alaska 2022) (first quoting
State, Dep't of Com., Cmty. & Econ. Dev., Div. of Ins. v. Progressive Cas. Ins. Co. , 165
P.3d 624, 629 (Alaska 2007); and then quoting Alaska Airlines, Inc. v. Darrow , 403 P.3d
1116, 1121 (Alaska 2017)). The Students offer no reason we should interpret "general
fund" as used in AS 37.14.750(a) to mean something different than the term used in
article IX, section 17.
31 Cowper, 874 P.2d at 936 (noting "some [restricted funds within the general
fund] remain 'available for appropriation' within" context of subsection 17(d)).
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32
Education Grant program and the Alaska Performance Scholarship program. A $400
million appropriation designed to generate consistent investment returns initially funded
33 The Students describe the HEIF as akin to an endowment and cite legislative
the HEIF.
34
history suggesting the legislature may have intended the fund to function similarly.
The statute creating the HEIF provides, among other things, that the fund
"is established in the general fund,"35 that "[m]oney in the fund does not lapse,"36 and
that the fund is not a dedicated fund.37 The HEIF consists of "money appropriated to the
fund," "income earned on investment of fund assets," "donations to the fund," and
"money redeposited under AS 14.43.915(c)."38 "As soon as practicable after July 1 of
each year, the commissioner of revenue shall determine the [HEIF's] market value" as
32 Ch. 74, § 13, SLA 2012; AS 37.14.750 (establishing HEIF); see
AS 14.43.400-.420 (Alaska Education Grant program); AS 14.43.810-.849 (Alaska
Performance Scholarship program).
33 See ch. 5, § 20(f), FSSLA 2011 ("The sumof $400,000,000 is appropriated
. . . to a fund created for the purpose of providing education grants or performance
scholarships, or both, by the Twenty-Seventh Alaska State Legislature."); ch. 74, § 27,
SLA 2012 ("The Alaska higher education investment fund established in AS 37.14.750,
enacted by sec. 13 of this Act, is the fund identified in sec. 20(f), ch. 5, FSSLA 2011.").
34 See Statement of Jerry Burnett, Dir., Admin. Servs. Div., Dep't of Revenue
at 9:45:27-9:51:56, Hearing on C.S.H.B. 104(RLS) Before the Sen. Fin. Comm., 27th
Leg., 2d Sess. (Jan. 18, 2012) (explaining HEIF could be set up as endowment).
35 AS 37.14.750(a).
36 Id.
37 AS 37.14.750(b); see Alaska Const. art. IX, § 7 (prohibiting dedicating
specific revenue to specific purposes).
38 AS 37.14.750(a)(1)-(4).
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39
of June 30. The statute further requires that the commissioner identify 7% of the
market value as "available for appropriation" to fund the Alaska Performance
40 and that the HEIF money may
Scholarship and the Alaska Education Grant programs
41 Thousands of students receive money from each
be appropriated to those accounts.
program each year. At the end of 2021 the HEIF's net value was slightly less than $423
million.
The legislature recently has used the HEIF to fund programs other than the
scholarship and grant programs it initially was created to fund. The legislature has
appropriated money from the HEIF to support the Washington-Wyoming-Alaska-
Montana-Idaho(WWAMI)program, payingtheout-of-statetuitiondifferencefor Alaska
medical school students attending University of Washington, and Alaska's Live
Homework Help program, providing students statewide free online tutoring.
2. The Executive Branch determined that the HEIF was
sweepable.
In July 2019 the legislature failed to achieve the required three-fourths vote
to reverse the annual CBR sweep. The OMB subsequently sent the legislature a letter
identifying the funds to be swept into the CBR pursuant to section 17(d); the HEIF was
on the list. The legislature passed a reverse sweep later that month.42
In 2021, after appropriating money for fiscal year 2022, the legislature
39 AS 37.14.750(c).
40 Id.
41
AS 37.14.750(a).
42
See 2019 Sen. J. 1421-22; 2019 House J. 1339-40.
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43
again failed to pass the reverse sweep and the HEIF again was identified for the sweep.
The Power Cost Equalization Endowment Fund (PCE), designed to "provid[e] a long-
44 also was identified for the
term, stable financing source for power cost equalization,"
sweep. But in August 2021 a superior court determined the PCE was not sweepable
because article IX, section 17(d) mandates only that general fund monies be swept; the
PCE, established as a "separate fund" of the Alaska Energy Authority, was not in the
general fund.45 The State did not appeal that decision.
After the PCE decision the Attorney General wrote a memorandum
acknowledging that money already appropriated from the HEIF for fiscal year 2022
probably couldbespent despitetheappropriation havingan effectivedateoccurring after
the sweep, and the Governor directed OMB to spend the money. But the Attorney
General maintained the position that the HEIF's remaining corpus was subject to the
sweep.
B. Proceedings
TheStudentsbrought suit, arguingthatbecauseHEIFappropriations do not
lapse, it was not sweepable. The Students' complaint was accompanied by a summary
judgment motion.46 The Executive Branch responded with a cross-motion for summary
judgment, arguing that, under our case law and article IX, section 17's plain language,
the HEIF was subject to the sweep. The Alaska Legislative Council filed an amicus brief
43 See 2021 Sen. J. 1290-91; 2021 House J. 1318-19.
44 Ch. 60, § 1, SLA 2000.
45 See AS 42.45.070.
46 See Alaska R. Civ. P. 56(c) (providing for summary judgment when "there
is no genuine issue as to any material fact and . . . the moving party is entitled to
judgment as a matter of law").
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(and does so in this appeal), supporting the Students' argument that the HEIF is not
subject to the sweep. 47
The superior court observed that the HEIF was housed within the general
fund and that the question was whether the HEIF was "available for appropriation" under
Cowper. Agreeing with the Executive Branch that Cowper's definition of "available for
appropriation" controlled, the court rejected the Students' argument that Cowper's
definition was binding only when applied to article IX, section 17(b) but was dictum as
applied to 17(d). Cowper instructed that "all monies over which the legislature has
retained the power to appropriate and which require further appropriation before
expenditure" are "available for appropriation."48 The superior court concluded that the
HEIF fell squarely within this definition. The court noted that AS 37.14.750(c) instructs
the commissioner of revenue to "identify seven percent" of the HEIF's market value "as
available for appropriation" and that under AS 37.14.750(a) funds require further
appropriation to the grant and scholarship accounts before payment to students. The
court further concluded that money already appropriated from the HEIF for fiscal year
2022 was not sweepable, in line with the Attorney General's August 2021 memorandum.
The superior court granted summary judgment in the Executive Branch's favor.
The Students ask us to reverse the superior court on appeal.
IV. STANDARDOFREVIEWANDCONSTITUTIONAL INTERPRETATION
" 'We reviewsummary judgment rulings de novo and may affirmsummary
judgment on any basis appearing in the record.' 'Questions of constitutional and
47 See AS 24.20.010 (recognizing legislature's need "for full-time technical
assistance in accomplishing the research, reporting, bill drafting, and examination and
revision of statutes, and general administrative services essential to the development of
sound legislation in the public interest" and establishing Legislative Council).
48 Hickel v. Cowper, 874 P.2d 922, 935 (Alaska 1994).
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----------------------- Page 15-----------------------
statutory interpretation . . . are questions of law to which we apply our independent
49
judgment.' "
The appropriate approach to interpreting language in the
Alaska Constitution is well established. "Constitutional
provisions should be given a reasonable and practical
interpretation in accordance with common sense. The court
should look to the plain meaning and purpose of the
provision and the intent of the framers."
Because of our concern for interpreting the
[C]onstitution as the people ratified it, we
generally are reluctant to construe abstrusely
any constitutional term that has a plain ordinary
meaning. Rather, absent some signs that the
term at issue has acquired a peculiar meaning
by statutory definition or judicial construction,
we defer to the meaning the people themselves
probably placed on the provision. Normally,
such deference to the intent of the people
requires "[a]dherence to the common
understanding of words."[50]
V. DISCUSSION
A. The HEIF Is Sweepable Under Hickel v. Cowper.
1. Under our holding in Hickel v. Cowper, the HEIF is available for
appropriation under subsection 17(b).
The Students contend that under subsection 17(d) the HEIF is not available
49 Wielechowski v. State, 403 P.3d 1141, 1146 (Alaska 2017) (footnote
omitted) (first quoting Seybert v. Alsworth , 367 P.3d 32, 36 (Alaska 2016) and then
quoting State v. Ketchikan Gateway Borough , 366 P.3d 86, 90 (Alaska 2016)).
50 Cowper, 874 P.2d at 926 (citations omitted) (second alteration in original)
(first quoting ARCO Alaska, Inc. v. State , 824 P.2d 708, 710 (Alaska 1992); and then
quoting Citizens Coal. for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 169 (Alaska
1991)).
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----------------------- Page 16-----------------------
for appropriation because the money already has been validly appropriated into the
HEIF, citing our statement in Cowper that "monies which already have been validly
committed by the legislature to some purpose should not be counted as available"
because "any given sum of money can . . . be appropriated [only] once during a given
51 The Council attempts to distinguish the HEIF from funds we found
time period."
52
available for appropriation in Cowper, specifically analogizing the HEIF to the oil and
hazardous substance release response fund that in Cowper we determined was not
available for appropriation under subsection 17(b).53 According to the Council, the sole
distinction is that the HEIF was created as an endowment fund while the other funds
were created as "accounting entr[ies] within the general fund until the monies were
ultimately disbursed, following an appropriation, for one project or another."
In Cowper weheldthat "the'amount availableforappropriation' within the
meaning of article IX, section 17 of the Alaska Constitution includes all monies over
which the legislature has retained the power to appropriate and which require further
54 We noted that the "key question" was "what
appropriation before expenditure."
constitutes a valid appropriation such that the funds involved are no longer available."55
We explained that "one of the fundamental characteristics of an appropriation, in the
public law context, is that it authorizes governmental expenditure without further
51 Id. at 930-31 & 931 n.20.
52 See id. at 933-34 (holding Railbelt energy, Alaska marine highway system
vessel replacement, and educational facilities maintenance and construction were funds
available for appropriation).
53 See id. at 933.
54 Id. at 935.
55 Id. at 932.
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----------------------- Page 17-----------------------
56
legislative action." We then applied that definition to several accounts that had been
established as "restricted" funds within the general fund and consisted of money
57 We explained that the "initial appropriations
appropriated to them by the legislature.
. . . [were] not sufficient to support any expenditure" and that further appropriations were
58 59
necessary. The funds were thus available for appropriation under subsection 17(b).
The same analysis applies in this case. The HEIF was funded with an initial
$400 million appropriation60 and continues to be funded with appropriations.61 But the
legislaturethen must appropriateHEIFmoney into theEducationGrantandPerformance
Scholarship awardaccounts;oncethesecondappropriations aremade, theprograms may
expend the funds.62 And contrary to the Legislative Council's argument, the HEIF is
unlike the oil and hazardous substance release response fund; because the Department
56 Id. at 933.
57 Id.
58 Id.
59 Id. at 934 ("Because the initial 'appropriations' to these funds cannot
support any expenditure, the money in these funds remains 'available for appropriation'
until further appropriations are made.").
60 See ch. 5, § 20(f), FSSLA 2011 ("The sum of $400,000,000 is appropriated
. . . to a fund created for the purpose of providing education grants or performance
scholarships, or both, by the Twenty-Seventh Alaska State Legislature."); ch. 74, § 27,
SLA 2012 ("The Alaska higher education investment fund established in AS 37.14.750,
enacted by sec. 13 of this Act, is the fund identified in sec. 20(f), ch. 5, FSSLA 2011.").
61 See AS 37.14.750(a) ("The [HEIF] consists of (1) money appropriated to
the fund . . . .").
62 Id. ; AS 14.43.915(a), (b). As noted earlier, the legislature may appropriate
HEIF money to fund additional programs, such as it did with WWAMI and Live
Homework Help.
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of Environmental Conservation's commissioner is statutorily authorized to expend
money in that fund without further legislative involvement, the fund is not available for
63
appropriation. But the Executive Branch is not authorized to spend monies from the
HEIF to fund programs without further legislative appropriations. For these reasons, the
HEIF is "available for appropriation" under the test we articulated in Cowper. Because
further appropriations are necessary to support expenditures, the HEIF is available for
appropriation under the Cowper analysis.
The Students and the Legislative Council nonetheless assert that the HEIF
is not available for appropriation under Cowper because it already has been appropriated
and expended to purchase "a customized well-diversified portfolio" of investments. The
Legislative Council contends that "[a]s an endowment, there was and is no need for
further appropriation to complete the expenditure that the Legislature intended when it
funded the HEIF." The Council argues that under the HEIF's endowment model, "the
initial appropriation into the HEIF and the subsequent purchase of these non-cash assets
was itself an expenditure," whereas the other funds merely are "a place where monies are
parked until they are ultimately spent on a project." The Legislative Council asserts that,
at most, the annual 7% "actually appropriated" from the HEIF would be available for
appropriation because at that point it is "appropriated fromthe excluded HEIF to another
purpose." Incontrast,theStudents concedethat "[t]helegislaturecan always appropriate
more or less than 7% from the HEIF, including for other purposes."
The Students' and the Legislative Council's assertion that the HEIF has
already been appropriated and thus is unavailable for appropriation is unpersuasive. The
fact that the HEIF already has been invested is irrelevant because the monies in the
63 See Cowper, 874 P.2d at 933; see also AS 46.08.040 (authorizing
commissioner of environmental conservation to spend money from oil and hazardous
substance release response fund).
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HEIF, by statute, must be further appropriated to be spent. 64 As the Executive Branch
65
correctly points out, most state monies are invested,
including the three funds we
66 Purchasing investment assets
determined were available for appropriation in Cowper.
was not a final expenditure such that no further legislative appropriations were
necessary, because the entirety of the HEIF remains available to be spent by the
legislature through appropriations.67 If the HEIF's corpus already were expended, then
it would not be available to appropriate for further expenditures because, logically, the
same money cannot be spent twice. Expenditures cannot be made from the HEIF
without further legislative appropriation; it thus is available for appropriation.
The Students counter that "the legislature always retains the ability to
re-appropriate funds to a new public purpose until the monies have actually been
expended, including appropriations for thecurrent fiscal year." (Emphasis omitted.) The
Students provide an example: The legislature could pass the budget for fiscal year 2023
appropriating $100 million for the court system, then cut the budget in the first several
months of the fiscal year before the money is spent. But this example is distinguishable
from the HEIF. The court system would be free to spend from its $100 million
64 AS 37.14.750(a).
65
See AS 37.10.070(a) ("The commissioner [of revenue] shall invest . . . the
money in the state treasury above an amount sufficient to meet immediate expenditure
needs.").
66 Cowper, 874 P.2d at 933-34; see AS 37.05.560(b) ("The educational
facilities maintenance and construction fund shall be invested by the Department of
Revenue so as to yield competitive market rates . . . ."); AS 37.05.520 ("The
[D]epartment of [R]evenue shall manage the [Railbelt energy] fund."); AS 37.05.550(a)
("The Department of Revenue shall manage the [Alaska marine highway system vessel
replacement] fund.").
67 See AS 37.14.750.
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appropriation in the months before the legislature's budget cut passed. By contrast,
before any part of the initially appropriated HEIF funds may be spent for scholarship
programs, grant accounts, or another purpose, thelegislaturemust makean appropriation
to authorize that spending.
In short, the HEIF is sweepable under the Cowper analysis of
subsection 17(b).
2. Cowper applied the same "available for appropriation"
definition to subsection 17(d) and held that certain restricted
funds were available for appropriation under subsection 17(d).
A major point of contention between the parties is whether our statement
in a Cowper footnote that we saw "no reason" to define "available for appropriation"
68 The Students contend
differently in subsections 17(b) and (d) was a holding or dictum.
that Cowper's "available for appropriation" analysis concerned only subsection 17(b)
and that we did not undertake a constitutional analysis of subsection 17(d). The Students
further assert that we"didnot account for thetemporal differences between [sub]sections
17(b) and 17(d)" or "analyze the framers' intent and voters' understanding."
The Students are incorrect that our statement regarding subsection 17(d)
was dictum. In Cowper we intentionally construed "available for appropriation" as
having the same meaning in subsections 17(b) and (d), and this was a key part of our
holding. We specifically analyzed AS 37.10.420(b)'s constitutionality, which addresses
subsection 17(d), and we held it unconstitutional; we cited the fact that, like the
legislature's attempted statutory definition of "available for appropriation" as used in
68 Cowper, 874 P.2d at 936 n.32; see Holding , B LACK 'S LAW DICTIONARY
(11th ed. 2019) (defining term as "[a] court's determination of a matter of law pivotal to
its decision; a principle drawn from such a decision"); Dictum, BLACK 'S LAW
DICTIONARY (11th ed. 2019) (noting judicial dictum is "an opinion . . . not essential to
the decision and therefore not binding even if it may later be accorded some weight").
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subsection 17(b), the statutory definition of the phrase in subsection 17(d) improperly
69
"exclude[d] restricted funds within the general fund."
Although we noted that the
definition of "available for appropriation" as used in subsection 17(b) was the "primary
70 we confirmed that we were analyzing the phrase "within the meaning of article
issue,"
IX, section 17 of the Alaska Constitution" as a whole.71
As the Executive Branch notes, the subsection 17(d) statutory definition of
"available for appropriation" that we struck down as unconstitutional was almost
identical to the definition the Students ask us to adopt. The unconstitutional statute
provided in part:
If the amount appropriated from the [CBR] has not been
repaid under [subsection 17(d)], the Department of
Administration shall transfer to the [CBR] the amount of
money comprising the unreserved, undesignated general
fund balance to be carried forward as of June 30 of the fiscal
year, or as much of it as is necessary to complete the
repayment.[72]
To compare, the Students argue that under subsection 17(d) sweepable funds are limited
to: "surplus, leftover, unobligated general funds remaining at the end of each succeeding
fiscal year"; "unappropriated, unobligated, surplus general fund monies"; or "remaining
unrestricted surpluses in the general fund at the end of each fiscal year." (Emphasis
omitted.) The Students' subsection 17(d) interpretation cannot be reconciled with our
69 Cowper, 874 P.2d at 936.
70 Id. at 926; see also Wielechowski v. State, 403 P.3d 1141, 1151 n.66
(Alaska2017) (correcting Cowper'sbriefcommentabout permanent fund and describing
Cowper as being about meaning of "available for appropriation" in subsection 17(b)).
71 Cowper, 874 P.2d at 935.
72 AS 37.10.420(b) (emphasis added); see Cowper, 874 P.2d at 936.
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Cowper holding that certain restricted funds within the general fund remain available for
appropriation under subsection 17(d).
3. Including "amounts actually appropriated" in subsection (b)
does not affect the subsection (d) definition.
In Cowper wedefined "availablefor appropriation"under subsection 17(b)
as including two types of money: (1) "all monies over which the legislature has retained
the power to appropriate and which require further appropriation before expenditure"
and (2) "all amounts actually appropriated, whether or not they would have been
73
considered available prior to appropriation."
The Students and the Executive Branch
agreethat the definition's second part cannot logically apply to subsection 17(d); if it did,
"all appropriations - including those for the current fiscal year - would be swept."
(Emphasis omitted.) The Students contend that because both parts of subsection 17(b)'s
"available for appropriation" definition cannot apply, the entire definition does not apply
and the subsection 17(d) holding is either wrong or dictum. The Executive Branch
counters by asserting that Cowper is "obviously and logically intended" to be read with
only the definition's first part applying to subsection 17(d) because the "all amounts
74 adjustment is relevant only to subsection 17(b).
actually appropriated"
Subsection 17(b) requires comparing the "amount available for
appropriation for a fiscal year" to the "amount appropriated for the previous fiscal year"
to determine whether the CBR may be accessed to make up for a budget shortfall.75 In
Cowper we reasoned that the "amount available for appropriation" in subsection 17(b)
"necessarily includes all amounts which are in fact appropriated for a fiscal year,
73 Cowper, 874 P.2d at 935.
74 Id.
75 Alaska Const. art. IX, § 17(b).
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including 'trust receipts' " because "nothing in the text or history of section 17 . . . would
76
justify classifying money actually appropriated as unavailable for appropriation." We
noted that it made sense to include trust receipts in the amount available for appropriation
because "appropriations made from these receipts represent a significant portion of state
77 and including trust receipts in the comparison would ensure that "for
spending"
example, declines in federal funding might result in increased access to the [CBR]."78
We ultimately concluded that regardless of policy arguments, "the text of
[sub]section 17(b) clearly requires that all funds which are in fact appropriated be
counted as 'available for appropriation.' "79
Subsection 17(d), in contrast, requires no year-to-year comparison of
available funds.80 The Executive Branch is correct that the "amounts actually
appropriated" adjustment is relevant only to subsection (b) and that Cowper can and
should be read as not applying the adjustment to subsection (d). Cowper stated that
when applying "available for appropriation" to particular funds the "key question" was
"what constitutes a valid appropriation such that the funds involved are no longer
76 Cowper, 874 P.2d at 931 (emphasis in original). We defined "trust
receipts" as including "all funds, whatever the source, which the State can . . . use [only]
for a specific stated purpose under applicable law" and noted "[t]he largest 'trust receipt'
category is federal funding." Id. at 931 n.22.
77 Id. at 931.
78 Id. at 932. On the comparison's other side, the "amount appropriated for
the previous fiscal year" "includes every dollar appropriated by the legislature, whatever
its source." Id. at 935. Including all amounts actually appropriated in the "amount
available for appropriation" ensures "symmetry in the comparison." Id.
79 Id. at 932.
80 Alaska Const. art. IX, § 17(d).
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81
available." As discussed above, we reasoned that a fundamental characteristic of an
appropriation is "authoriz[ing] governmental expenditure without further legislative
action"; using that definition we determined that certain funds requiring further
legislative appropriations before expenditures can be made were "available for
82 Nowhere in our analysis of which specific funds were available for
appropriation."
appropriation did we apply or discuss the "amounts already appropriated" adjustment.83
Our statements that "all amounts actually appropriated . . . are available within the
meaning of section 17" and that we saw "no reason to give 'available for appropriation'
a different meaning in subsection (d) than we did in subsection (b)" must be understood
within the decision's context as a whole;84 the "all amounts actually appropriated"
adjustment is necessary in light of subsection 17(b)'s text but is irrelevant to
subsection 17(d).
4. Our determination that the HEIF is sweepable does not present
a separation of powers issue.
The Students next contend that interpreting subsection 17(d) to include the
HEIF as a sweepable fund would violate the separation of powers doctrine. The
separation of powers doctrine "limits the authority of each branch [of government] to
interfere in the powers that have been delegated to the other branches."85
81 Cowper, 874 P.2d at 932.
82 Id. at 933-34.
83 See id.
84 Id. at 935, 936 n.32.
85 State v. Recall Dunleavy, 491 P.3d 343, 367 (Alaska 2021) (quoting Alaska
Pub. Int. Rsch. Grp. v. State, 167 P.3d 27, 35 (Alaska 2007)).
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----------------------- Page 25-----------------------
86
The Alaska Constitution "gives the legislature the power to legislate and appropriate."
The Students suggest that sweeping the HEIF into the CBR "would be a radical, new,
and unconstitutional infringement on the legislature's appropriation power." The
superior court dismissed the Students' separation of powers argument:
[The Students] also argue there is a separation of powers
issue pursuant to Article IX, section 13 of the Alaska
[87] based on [the Executive Branch's]
Constitution
interpretation of [sub]section 17(d). S[ubs]ection 17(d) is a
constitutional directive which was approved by Alaska
voters. . . . . Any statutes which apply to [sub]section 17(d)
must conform to the language and directive of the
constitutional provision. Because the Executive Branch
performed a valid sweep of funds, there cannot be a conflict
creating a separation of powers question.
The superior court was correct. Contrary to the Students' assertions,
sweeping the HEIF into the CBR does not render the appropriations into the HEIF void
because the HEIF is constitutionally required to be swept into the CBR. The plain text
of subsection 17(d) requires that "money in the general fund available for appropriation
at the end of each succeeding fiscal year shall be deposited in the [CBR]" until the
86 Alaska Legis. Council v. Knowles , 21 P.3d 367, 371 (Alaska 2001)
(footnote omitted); see Alaska Const. art. IX, § 12 (requiring governor to submit next
fiscal year's budget to legislature with general appropriation bill authorizing
expenditures).
87 Article IX, section 13 of the Alaska Constitution states: "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."
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88
amount appropriated fromthe CBR is repaid. And we interpreted money "available for
89
appropriation" to include funds such as the HEIF, as discussed above.
The CBR
90
amendment is a valid limit on the legislature's power, adopted by the Alaska voters.
The separation of powers doctrine is thus not violated by theExecutive Branch following
the constitutional mandate to sweep the HEIF into the CBR.
B. We Decline To Overrule Cowper.
Finally, the Students argue that if we conclude Cowper requires us to find
the HEIF is available for appropriation under subsection 17(d) and thus subject to the
sweep, we should overrule Cowper. "[T]he importance of stare decisis cannot be
overstated: '[S]tare decisis is a practical, flexible command that balances our
community's competing interests in the stability of legal norms and the need to adapt
91 A party seeking reversal has "a heavy
those norms to society's changing demands.' "
threshold burden of showing compelling reasons for reconsidering the prior ruling."92
We consider overturning a prior decision only if we are clearly convinced that (1) "the
88 Alaska Const. art. IX, § 17(d).
89 See Cowper , 874 P.2d at 933-34, 936 (holding funds that require "[f]urther
legislative appropriations" are "available for appropriation" and thus are sweepable).
90 See Hickel v. Halford, 872 P.2d 171, 177 & n.9 (Alaska 1994) (describing
Article IX, section 17 as voters' "response to a perceived impending fiscal crisis
resulting from a growing gap between State spending levels and general fund revenues"
intended "to remove certain unexpected income from the appropriations power of the
legislature[] and to save that income for future need").
91 Meyer v. Alaskans for Better Elections, 465 P.3d 477, 495 (Alaska 2020)
(second alteration in original) (quoting Pratt & Whitney Canada, Inc. v. Sheehan, 852
P.2d 1173, 1175 (Alaska 1993)).
92 Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004).
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----------------------- Page 27-----------------------
rule was originally erroneous or is no longer sound because of changed conditions" and
93
(2) "more good than harm would result from a departure from precedent." "[A]
decision is 'originally erroneous' if (1) it 'proves to be unworkable in practice' or (2) we
failed to address relevant points and the party can show that it 'would clearly have
94
prevailed if the points had been fully considered.' "
The Students contend that Cowper was originally erroneous. They assert
that we "failed to address relevant points" because subsection 17(d)'s interpretation was
not before us in Cowper, we did not evaluate which funds should be subject to the sweep,
and we did not analyze subsection 17(d)'s plain language or purpose. We disagree. As
discussed above, in Cowper we extensively analyzed the meaning of "available for
appropriation" and intentionally applied this definition to subsection 17(d).
The Students also cannot show that they "would clearly have prevailed if
the points had been fully considered"95 because Cowper properly interpreted "available
96 We begin with the presumption that the
for appropriation" as used in subsection 17(d).
same word or phrase - "available for appropriation" - was used consistently
throughout section 17.97 The Students and the Executive Branch agree that including
93 Id.
94 Khan v. State , 278 P.3d 893, 901 (Alaska 2012) (emphasis in original)
(quoting Thomas, 102 P.3d at 943).
95 See id. (emphasis in original) (quoting Thomas, 102 P.3d at 943).
96 Hickel v. Cowper, 874 P.2d 922, 935 (Alaska 1994).
97 See Forrer v. State, 471 P.3d 569, 585 (Alaska 2020) ("Terms and phrases
chosen by the framers are given their ordinary meaning as they were understood at the
time, and usage of those terms is presumed to be consistent throughout." (footnote
omitted)); id. at 597 ("The presumption of consistent usage, which states that words are
(continued...)
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"amounts actually appropriated" in our formulation of "available for appropriation"
98
under subsection 17(b) does not logically apply to subsection 17(d).
But, as explained
above, that does not mean the entire "available for appropriation" definition developed
in Cowper must be disregarded for subsection 17(d). The phrase, used twice in section
99
17 just sentences apart, still must be construed as consistently as possible.
The Students argue that section 17's drafting history and underlying
policies, along with voters' likely understanding of the section, clearly justify deviating
from Cowper's determination that restricted funds within the general fund are available
for appropriation under subsection 17(d). The Students concede that subsection 17(d)'s
legislative history is sparse "because its language was added on the House floor at the
tail end of the 1990 legislative session." But the Students point to a statement by Senator
Jan Faiks about Senate Joint Resolution 5 (S.J.R. 5), an initial draft of the bill creating
the CBR, in which the Senator noted that section 17 targeted "unrestricted general
100 But in Cowper we specifically rejected the notion that only unrestricted
funds."
101 As the
general funds were "available for appropriation" under subsection 17(b).
Studentsthemselves point out, S.J.R. 5 "wascompletely rewrittenthroughanamendment
97 (...continued)
'presumed to bear the same meaning throughout a text,' is not a canon of construction
we cast aside lightly - especially when those terms appear multiple times within the
NTONIN SCALIA & B RYAN A. G ARNER,
same article." (footnote omitted) (quoting A
EADING LAW : THE INTERPRETATION OF LEGAL TEXTS 170 (2012))).
R
98 See Cowper , 874 P.2d at 935.
99 See Forrer, 471 P.3d at 585, 597.
100 See Minutes, Sen. Fin. Comm. Hearing on S.J.R. 5, 16th Leg., 2d Sess.
(Feb. 2, 1990) (statement of Senator Jan Faiks).
101 See Cowper, 874 P.2d at 933-34.
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on the floor of the House on May 8, 1990" and "only one short statement explained what
would later become [sub]section 17(d)." The only sponsor statement the Students cite
about the House amendment explained that under subsection 17(d) the CBR "would be
repaid . . . out of any general fund surpluses that remain at the end of a fiscal year." 102
(Emphasis omitted.) But this statement on its own does not compel the result the
Students seek; it does not answer whether unspent restricted funds within the general
fund count as "surplus." Subsection 17(d)'s limited legislative history is not compelling
enough to overcome the presumption that the same phrase should be construed as
consistently as possible throughout a statute or constitutional provision.103
The Students argue that section 17 was intended by its drafters and
understood by the voters who approved it to be a budget-stabilizing mechanism. The
Executive Branch points out that the stabilizing mechanism intended by section 17 is not
preserving long-term funds but rather preserving Alaska's long-term solvency and
financial flexibility. As the Executive Branch states, it would not be consistent with the
CBR amendment's purpose if "all the legislature has to do is label a statutory savings
account with a possible future use to exempt the funds in the account from being used
to meet the repayment obligation." The legislature cannot have its cake and eat it too:
It would be inconsistent with the CBR amendment's language and purpose to allow the
legislature to retain control of appropriations such that money in the HEIF must be
further appropriated before being spent, but at the same time claim that the money is not
102 See Statement of Representative Kay Brown at 1:02:50-1:03:08, House
Floor Session on S.J.R. 5, 16th Leg., 2d Sess., (May 8, 1990), http://www.akleg.gov/ftr/
archives/1990/HFLR/121-HFLR-900508-2.mp3("Ifmoneyisborrowed,orappropriated
from the [CBR] in that manner, or any money taken out of it, [it] would be repaid to the
[CBR] out of any general . . . fund surpluses that remain at the end of a fiscal year.").
103 See Forrer, 471 P.3d at 585, 597.
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available for appropriation. The Executive Branch is correct that "[t]he HEIF - which
is funded far beyond any expected annual scholarship need - is every bit as 'surplus'
as unrestricted general fund money." This is consistent with the voters' probable
104
understanding that surplus general fund money would be swept into the CBR.
For these reasons the Students also cannot show that more good than harm
105
would result from reversing Cowper. Cowper's holding that "available for
appropriation" under subsection 17(d) includes somerestricted funds fromwhich further
legislativeappropriations arerequired beforeexpenditures can bemadeis consistent with
the purpose behind the amendment and the framers' preference that "control of and
responsibility for state spending" be preserved "in the legislature and the governor."106
As theExecutiveBranch notes, interpreting "availablefor appropriation"inthe very way
that the term was defined in the statute Cowper ruled unconstitutional would undermine
the CBR amendment's purpose and "essentially write [sub]section 17(d) out of the
amendment." We decline to overrule Cowper.
VI. CONCLUSION
The superior court's decision is AFFIRMED.
104 See 1990 Ballot Measure No. 1, Leg. Affairs Agency Summary ("Surplus
general fund money must be deposited in the reserve fund at then end of each year
. . . .").
105 See Meyer v. Alaskans for Better Elections, 465 P.3d 477, 495 (Alaska
2020).
106 Sonneman v. Hickel, 836 P.2d 936, 938 (Alaska 1992).
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