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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaskans for Efficient Government, Inc. v. Knowles (05/14/2004) sp-5808

Alaskans for Efficient Government, Inc. v. Knowles (05/14/2004) sp-5808

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

ALASKANS FOR EFFICIENT        )
GOVERNMENT, INC., an Alaskan  )    Supreme Court No. S-10731
nonprofit corporation,             )
                              )    Superior Court No. 3AN-02-7717
CI
             Appellant,            )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5808 - May 14, 2004]
TONY KNOWLES, in his official )
capacity as Governor of Alaska,         )
                              )
             Appellee.             )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances:  Kenneth P. Jacobus, Kenneth  P.
          Jacobus,   P.C.,  Anchorage,  for  Appellant.
          Sarah  J.  Felix, Assistant Attorney General,
          and   Gregg  D.  Renkes,  Attorney   General,
          Juneau, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          EASTAUGH, Justice.

I.   INTRODUCTION

           Alaska  Statute 44.06.060 requires the legislature  to

appoint  a  FRANK Commission to determine the costs  required  by

initiatives  or legislative enactments authorizing relocation  of

any  functions of state government.  We consider here whether   -

as Alaskans for Efficient Government, Inc. contends - the statute

requires   appointment  of  the  commission  when  a   relocation

initiative  is  placed on the ballot, or - as the superior  court

held   -   only  when  the  voters  have  approved  a  relocation

initiative.   Because we read the statute to require  appointment

of  a  FRANK  Commission  only after the voters  have  enacted  a

relocation  initiative  and because we  also  conclude  that  the

statute  does  not  violate the Alaska constitution,  we  affirm.

Given our ruling on the merits of the appeal, we do not reach the

governor's  argument  that  laches bars  Alaskans  for  Efficient

Government, Inc.'s lawsuit.

II.  FACTS AND PROCEEDINGS

            In  July  2001  the  lieutenant  governor  of  Alaska

certified a voter initiative application proposing relocation  of

the  Alaska  legislature.  In March 2002 the lieutenant  governor

certified  the  initiative  for  the  November  5,  2002  general

election  ballot.  The ballot initiative, 01 CHGE,  proposed  (1)

moving  legislative sessions from Juneau to the Matanuska-Susitna

Borough,  and  (2)  repealing  the  requirement  that   a   FRANK

Commission  be  created to determine the costs of relocating  the

legislature.  Notwithstanding requests for creation  of  a  FRANK

Commission to determine costs of a relocation of the legislature,

no  FRANK  Commission was appointed before the November  5,  2002

general election.  The voters defeated initiative 01 CHGE at  the

November 5, 2002 general election.

           Alaskans for Efficient Government, Inc., (AFEG)  filed

three   lawsuits  concerning  initiative  01  CHGE.   The   first

concerned the ballot language.  The second concerned the creation

of  a  FRANK Commission.  The third was an election contest filed

by AFEG and twenty qualified voters following the election.

          The second lawsuit is the one now before us.

           AFEG  filed  its  first lawsuit after  the  initiative

application was certified.  The complaint named as defendant then-

Governor  Tony  Knowles  in  his official  capacity.   The  first

lawsuit  addressed the ballot language and AFEG did not initially

claim  in that lawsuit that a FRANK Commission should be created.

AFEG  eventually raised that issue in the first lawsuit  when  it

moved  for  summary judgment.  AFEG's motion asked  the  superior

court  to order the creation of a FRANK Commission.  The superior

court ruled on the ballot language issue, but refused to rule  on

the issue regarding creation of a FRANK Commission.  The superior

court dismissed AFEG's FRANK Commission claim without prejudice.

           AFEG, acting through its attorney, wrote the governor,

speaker  of the Alaska house, and president of the Alaska  senate

in February 2002 requesting the appointment of a FRANK Commission

in  time to present its report before the November 2002 election.

The regular legislative session ended in May 2002.

           AFEG filed its complaint in the second lawsuit in June

2002,  after  the  regular legislative session had  ended.   AFEG

there  alleged that AS 44.06.050-.060 required appointment  of  a

FRANK  Commission  for determination of relocation  costs  before

voters  were to vote on the relocation initiative.  The  governor

responded  in  that  lawsuit that the statute did  not  authorize

creation  of a FRANK Commission until after a relocation  law  or

initiative  had been enacted into law.  The governor argued  that

if  a  proposed relocation were to be enacted, a second  election

would  be  held  to allow voters to approve or reject  the  bonds

required to pay for the relocation.

           AFEG  asked  the superior court for an injunction  and

declaratory  relief.  After a special session of the  legislature

ended, AFEG dropped its request for an injunction and argued  for

a  declaratory  judgment establishing when the  statute  requires

appointment  of a FRANK Commission.  Superior Court Judge  Morgan

Christen  denied  AFEG's  motion for injunction  and  declaratory

relief.   The  superior  court's  eleven-page  memorandum   order

explained the court's reasoning, and held that

          AS  44.06.060 did not require the appointment
          of   a  FRANK  Commission  after  Plaintiff's
          ballot   initiative  was  certified  by   the
          Lieutenant  Governor.   Rather,  the  current
          statutory scheme calls for the appointment of
          a  FRANK Commission to investigate the  total
          cost  of  the  proposed move only  if  voters
          first   pass  the  initiative  to  move   the
          legislature.   The  present statutory  scheme
          contemplates   that  the  Commission's   cost
          information  is then to be presented  to  the
          voters,  so  that  they  may  decide,  in   a
          separate  election, whether the cost  of  the
          move should be authorized.
          
           AFEG's appeal asks us to reverse the court's order and

remand with instructions that initiative 01 CHGE be placed on the

ballot again in the 2004 general election, and to require that  a

FRANK  Commission  be  appointed  and  that  it  be  required  to

determine before the election the relocation costs.

III. DISCUSSION

     A.   Standard of Review

           We  review  de  novo questions of law,  including  the

interpretation  of  a  statute, adopting the  rule  of  law  most

persuasive  in  light of precedent, reason, and policy.1   Rather

than   rigidly   apply  a  plain  meaning   rule   of   statutory

interpretation, we favor a "sliding scale approach"  under  which

"  `the  plainer the language of the statute, the more convincing

contrary legislative history must be.' "2



          B.     Alaska   Statutes  44.06.050-.060  Require   the
          Governor  To  Appoint the FRANK Commission  Only  After
          Voters Approve a Relocation Initiative.
          
           The  question  we  must answer is whether  Alaska  law

requires  the governor to appoint the FRANK Commission before  or

after voters enact a relocation measure.  The superior court held

that  AS  44.06.060  requires the governor to appoint  the  FRANK

Commission only if voters first pass the initiative to  move  the

legislature.   AFEG argues that this holding was in  error;  AFEG

asserts  that AS 44.06.050-.060 require that the FRANK Commission

be  appointed  to  determine  costs before  voters  vote  on  the

relocation initiative.

           AFEG  argues  that  the purpose and  language  of  the

statutes  establish that the FRANK Commission  should  have  been

appointed  before  the  November 5, 2002 election.  The  governor

responds that the statutes do not authorize creation of the FRANK

Commission  until after a relocation law or initiative  has  been

enacted  into law.  If a proposed relocation were to be  enacted,

then  a  second election would be held to allow voters to approve

or  reject  the  bonds required to pay for the  relocation.   The

governor  argues that language, history, and policy  support  his

interpretation of AS 44.06.050-.060.

          Alaska Statute 44.06.060 provides for the establishment

of  a  FRANK  Commission  "to determine  the  costs  required  by

initiatives  or legislative enactments authorizing relocation  of

any  of  the  present functions of state government."3   (Neither

party  contends that the commission is intended to be a  standing

commission.  We assume the statute calls for the establishment of

a  commission  on an ad hoc basis.)  AFEG argues  that  the  word

"initiatives"   as  it  is  used  in  AS  44.06.060   refers   to

propositions  that  the  lieutenant governor  has  certified  and

placed on the ballot.  The governor argues that "initiatives"  in

this  statute refers to propositions that the voters have enacted

into law.

           The  word  "initiative" has several possible meanings.

Black's  Law Dictionary4 defines "initiative" as "[a]n  electoral

process  by  which a percentage of voters can propose legislation

and  compel  a  vote  on it by the legislature  or  by  the  full

electorate."5   Opinions  of  this  court6  have  used  the  word

"initiative"  to  refer to:  proposals that  have  not  yet  been

approved  by  the lieutenant governor and placed on the  ballot;7

initiatives  enacted  into law;8 and the  initiative  process  in

general.9   Indeed,  both  parties  in  this  case  refer  to  AS

44.06.050-.060 - an enacted law - as the "FRANK Initiative."

           We construe words according to their common - or, when

applicable,  their technical - meanings.10  The word "initiative"

in  isolation  can  appropriately refer to  legislation  at  many

different  stages of the initiative process, as well  as  to  the

process  of  direct voter legislation itself.  Because dictionary

authors,  proponents  of initiatives, government  officials,  and

courts use the word "initiative" to refer to the products at many

stages  of  the  process - including proposals  before  they  are

placed  on  the ballot as well as adopted initiatives  for  years

after  they are enacted into law - we must consider how the  word

"initiative"  is used in AS 44.06.060 to determine the  statute's

purpose.11

           Alaska  Statute  44.06.060  places  "initiatives"  and

"legislative  enactments"  in  a  parallel  construction.    This

suggests  that  "initiatives" refers to initiatives  that  voters

have   approved,  because  "legislative  enactments"  refers   to

enactments  that  the  legislature has  approved.   The  parallel

construction  implies that the commission must be appointed  only

after  the  relocation proposal has become law, either  by  voter

approval or by legislative approval.

           In  addition,  AS 44.06.060 states that  a  commission

shall   be   appointed  "to  determine  the  costs  required   by

initiatives  or legislative enactments authorizing relocation  of

any  of  the  present functions of state government."   (Emphasis

added.)   Before voter approval, a proposed initiative  does  not

require  or authorize anything.  Applying normal usage,  only  an

initiative already adopted by the electorate would be regarded as

"authorizing" a relocation.  If the statute had been intended  to

include  proposed initiatives, one would expect it  to  refer  to

"costs that would be required by initiatives proposing relocation

of  any  of  the present functions of state government,"  or  use

equivalent language.  The statute's structure and words therefore

imply  that  AS 44.06.060 does not require the appointment  of  a

FRANK Commission before the voters have adopted an initiative.

          This reading is consistent with the historical context.

When  the  FRANK Initiative was adopted in 1994, earlier attempts

to relocate the capital and fund the relocation involved multiple

initiatives and elections.12  Thus, from 1974 to 1978 voters  had

decided  in  a  series  of elections (1) to  relocate  the  state

capital  (1974);  (2)  to  select  Willow  as  the  site  of  the

relocation (1976); (3) to require that the costs to relocate  the

capital  be  determined (1978); and (4) to require  that  a  bond

issue  including  all  bondable costs of  capital  relocation  be

approved by a majority of voters before expending state money  to

relocate  the  capital  (1978).  The  1978  provisions  were  the

original "FRANK Initiative," approved by the voters.13   In  1981

the  legislature reenacted the 1978 FRANK Initiative  to  provide

for  determining the costs that would be required to relocate the

capital.14   The  statute  enacted by  the  legislature  in  1981

provided that a FRANK Commission would estimate a list of  costs,

and  that  the  sum of the costs would be included  in  a  ballot

proposition submitted to the voters at the 1982 general election.15

In  1982 the voters rejected a ballot measure approving the  cost

of  relocating the capital to Willow.16  The 1982 ballot  measure

also  repealed  the  existing laws and  initiatives  relating  to

capital relocation.17

           The  state's interpretation and implementation of  the

1978  FRANK  Initiative provide the historical context  in  which

voters enacted the 1994 FRANK Initiative.  If the 1994 initiative

proponents  and the voters who enacted the 1994 FRANK  Initiative

had  been  dissatisfied with the historical  practice,  we  would

expect that AS 44.06.060 would have included some indication that

the commission should determine costs before voters took part  in

a  single election addressing both the move and its costs.18  The

1994 FRANK Initiative did not attempt to make such a change.  The

1994  Initiative  included no language suggesting  any  different

process  than  had been followed after the 1978 FRANK  Initiative

was adopted.

           Before  the FRANK Commission can begin its  work,  the

governor  must  appoint  and the legislature  must  confirm  nine

commission members, consisting of a  chairperson and two  persons

from each judicial district.19  Alaska Statute 44.06.055 provides

that  state money may be expended for a relocation only  after  a

majority of voters have approved "a bond issue that includes  all

bondable  costs to the state of the relocation" over the  twelve-

year  period following approval.  The same section also  requires

the  commission to determine all costs, including bondable  costs

of relocation:

          The  commission established in  AS  44.06.060
          shall  determine all bondable costs and total
          costs  including,  but not  limited  to,  the
          costs of moving personnel and offices to  the
          relocation  site; the social,  economic,  and
          environmental  costs  to  the   present   and
          relocation sites; and the costs to the  state
          of planning, building, furnishing, using, and
          financing facilities at least equal to  those
          provided by the present capital city.[20]
          
The  commission's required duties are potentially  difficult  and

complex.   History  suggests that a FRANK Commission  needs  many

months to fulfill its statutory duties.21

           As  a  matter  of practical application,  as  well  as

history, the infeasibility of complying with the FRANK Initiative

within the four-month framework AFEG proposes adds support to the

governor's interpretation of AS 44.06.060.

           Public policy considerations also favor the governor's

interpretation.    The  FRANK  Commission's  duties   require   a

significant   expenditure  of  time  and  resources.    We   have

considered  the  financial burden on  the  state,  and  thus  the

public,  to  be  a  matter  of  public  policy  relevant  to  our

construction  of statutes.22  It would waste state  resources  to

interpret  AS  44.06.050-.060 to require the state  to  create  a

FRANK  Commission and for that commission to determine relocation

costs  every  time a relocation initiative is certified  for  the

ballot.  The relatively small number of voters required to obtain

certification  of an initiative for the ballot does  not  justify

such  expense.   We  agree with the superior court's  observation

that  "it will require very significant expenditures of time  and

funds  for the Commission to prepare such a report (or a majority

and  minority  report  if  they cannot  agree).   Presumably  the

Commissioner  will retain staff to assist it."  If an  initiative

is  enacted,  on  the other hand, a majority of all  voters  have

opted  to  approve  a relocation proposal.  At  that  point,  the

statute  requires the state to create a FRANK Commission and  the

FRANK Commission to determine relocation costs so that the voters

can  approve the costs before the state incurs them.23   In  this

case,  the  question is not who bears the financial  burden,  but

whether and when a large financial burden is to be borne  by  the

state.   This public policy concern, relating to placing a  large

financial  burden on the public, augments the FRANK  Initiative's

reasonably clear language and historical context.  That financial

burden  is more justifiably placed on the state after a  majority

of all voters have supported a relocation measure.

           We  conclude - given the statute's historical  context

and   language,   and  public  policy  -  that   the   governor's

interpretation of AS 44.06.060 correctly reflects  the  statute's

purpose.

          C.    Alaska Statutes 44.06.050-.060 Do Not Violate the

          Alaska Constitution.

          AFEG also argues that an interpretation of AS 44.06.060

that  would require voters to approve a relocation initiative  in

one election and then approve a bond measure in a second election

-  rather than in a single election - would cause AS 44.06.060 to

violate the Alaska Constitution.  It contends that the governor's

interpretation of AS 44.06.060 mandates two elections to  approve

a relocation initiative.  This intepretation, AFEG argues, places

AS 44.06.060 in conflict with article XI, section 7 of the Alaska

Constitution because "[t]here is no restriction authorized on the

constitutional initiative process which allows a statute, such as

the  FRANK Initiative, to be enacted which mandates two elections

to  approve any initiative, including one to relocate legislative

sessions."   AFEG concludes that under article XI of  the  Alaska

Constitution,  "petitioners  are  entitled  to  move  legislative

sessions  with  a  single  election."  We  disagree  with  AFEG's

conclusion.   First,  article  XI,  section  7  of   the   Alaska

Constitution  -  the section dealing with "Restrictions"  on  the

initiative process - provides:

          The  initiative shall not be used to dedicate
          revenues,   make  or  repeal  appropriations,
          create  courts,  define the  jurisdiction  of
          courts  or  prescribe their rules,  or  enact
          local or special legislation.  The referendum
          shall  not  be  applied  to  dedications   of
          revenue,  to  appropriations,  to  local   or
          special legislation, or to laws necessary for
          the  immediate  preservation  of  the  public
          peace, health, or safety.
          
Section  7  limits the purposes for which the initiative  process

may  be  used.  It does not specify procedural requirements  that

may  be placed upon the initiative process.  Further, article XI,

section   6  -  the  section  on  "Enactment"  -  provides   that

"[a]dditional procedures for the initiative and referendum may be

prescribed by law."24  We disagree with AFEG's contention that the

constitution  entitles  petitioners  to  attempt  to   move   the

legislative sessions with a single election.25

           We also agree with the superior court that the statute

does  not  require the same vote twice.  The two (or more)  votes

that  are  required are on different questions: first, whether  a

relocation  is a good idea, and second, whether the state  should

expend  the  money to relocate.  The second vote,  approving  the

costs  of  relocation, would be necessary whether the concept  of

relocation  has been accomplished by initiative or by legislative

enactment.  Our interpretation of AS 44.06.060 gives rise  to  no

constitutional violation.

           Finally, the governor has raised a defense of  laches.

Given  our resolution of the merits of AFEG's appeal, we  do  not

need  to consider whether AFEG unreasonably delayed bringing  its

claim  or  whether any delay caused prejudice to the governor  in

his official capacity.

IV.  CONCLUSION

          We AFFIRM the decision of the superior court.

_______________________________
1    Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska
2003).
2     Ganz  v. Alaska Airlines, Inc., 963 P.2d 1015, 1019 (Alaska
1998)  (quoting  Chokwak v. Worley, 912 P.2d 1248,  1251  (Alaska
1996)).
3    AS 44.06.060 states:

          The  legislature shall establish a commission
          composed   of   nine  members,  including   a
          chairperson   and  two  persons   from   each
          judicial  district, appointed by the governor
          and   confirmed   by  the   legislature,   to
          determine  the costs required by  initiatives
          or    legislative   enactments    authorizing
          relocation of any of the present functions of
          state government.
          
4    Dictionaries provide a useful starting point for determining
what  statutory  terms  mean,  as they  provide  the  common  and
ordinary meaning of words.  When a popular or common word is used
in  a  statute, but is not defined, the word should be given  its
common  meaning.   2A  Norman  J.  Singer,  Sutherland  Statutory
Construction  47.28 (6th ed. 2000).
5     Black's Law Dictionary 788 (7th ed. 1999) (emphasis added);
see  also  Webster's II New Riverside University  Dictionary  629
(1994)  (stating  "initiative" can refer to  right  or  power  to
introduce new legislative measure as well as procedure  by  which
citizens   can   propose  law  and  ensure  its   submission   to
electorate).
6     A  term  which  has  been  judicially  interpreted  may  be
considered  as  a legal term.  Legal terms are presumed  to  have
been used in their legal sense.  2A Singer, supra note 4  47.30.
7     Warren v. Boucher, 543 P.2d 731, 740 (Alaska 1975) (holding
that   legislative act was substantially similar to "initiative,"
and  thus  that  lieutenant governor was correct  in  withholding
"initiative" from ballot).
8     Brooks  v.  Wright,  971  P.2d  1025,  1026  (Alaska  1999)
(discussing    "airborne  hunting  initiative,"  an   "initiative
[which] had already become law").
9     Wolf v. Alaska State Hous. Auth., 514 P.2d 233, 235 (Alaska
1973) (discussing adoption of ordinance "by popular initiative").
10    AS 01.10.040 provides in part:

          Words   and   phrases  shall   be   construed
          according   to  the  rules  of  grammar   and
          according to their common and approved usage.
          Technical  words and phrases and those  which
          have  acquired  a  peculiar  and  appropriate
          meaning, whether by legislative definition or
          otherwise,  shall be construed  according  to
          the peculiar and appropriate meaning.
          
11     See  State  v.  Alex,  646 P.2d  203,  208  (Alaska  1982)
(concluding  that  meaning of "tax" must be determined  from  its
context  in  text  of Alaska constitution and in  discussions  at
constitutional convention).

          Where a word of common usage has more than one meaning,
the meaning which will best attain the purpose of the legislature
should  be  adopted in construing the statute.  2A Singer,  supra
note 4,  47.28.

12     http://www.gov.state.ak.us/ltgov/elections/capmove.htm (on
file with court).
13    Id.
14    Ch. 54,  1, SLA 1981.
15    Id.
16     http://www.gov.state.ak.us/ltgov/elections/capmove.htm (on
file with court).
17    Ch. 54,  1, SLA 1981.
18    See Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 176
(Alaska 1986) (noting that legislature's enactment of bill making
minor technical changes to law but leaving unchanged phrase court
considered  to  be operative supported court's interpretation  of
statutory  language).  Alaskan voters, by initiative,  also  have
the  opportunity  to  enact statutory language  that  changes  an
existing  interpretation and understanding of  the  law.   Alaska
Const. art. XII,  11.
19    AS 44.06.060.
20    AS 44.06.055.
21      The  1981  legislative  reenactment  required  the  FRANK
Commission  to  prepare a voter ballot proposition that  included
the  costs  involved in relocating state employees and equipment,
making capital improvements, and obtaining indemnification.   Ch.
54,   1,  SLA  1981.  The legislative reenactment also instructed
the commission to revise a 1978 basic development plan.  The 1981
legislative enactment was approved by the governor in July  1981,
and  became effective in October 1981.  This gave  the commission
a  year  by which to do its work before the 1982 general election
was to take place.
22     See Anderson v. Anderson, 736 P.2d 320, 322 (Alaska  1987)
(considering  legislature's declared  public  policy  that  child
support  statute be construed so as to minimize state's financial
burden).

23    AS 44.06.050 states:

          The  purpose of AS 44.06.050-44.06.060 is  to
          guarantee to the people their right  to  know
          and  to  approve  in  advance  all  costs  of
          relocating the capital or the legislature; to
          insure   that   the  people  will   have   an
          opportunity to make an informed and objective
          decision  on  relocating the capital  or  the
          legislature    with   all   pertinent    data
          concerning  the costs to the  state;  and  to
          insure  that  the  costs  of  relocating  the
          capital  or  the  legislature  will  not   be
          incurred by the state without the approval of
          the electorate.
          
24    Alaska Const. art. XI,  6.
25    Of course, the constitution does not necessarily require two
elections.   If, as in the underlying ballot initiative  in  this
case, the proposition before the voters were both to relocate the
legislative  sessions and repeal AS 44.06.050-.060, one  election
would suffice.