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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.
