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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Trust the People (05/27/2005) sp-5898

State v. Trust the People (05/27/2005) sp-5898

     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

STATE OF ALASKA, LOREN             )
LEMAN, LIEUTENANT                       )    Supreme Court No. S-
                                   11288
GOVERNOR, and                 GREGG D.       )
RENKES, ALASKA ATTORNEY            )    Superior Court No.
GENERAL,                                                )    3AN-
                                   03-12217 CI
                              )
               Appellants,         )
                              )    O P I N I O N
     v.                       )
                              )    [No. 5898 - May 27, 2005]
TRUST THE PEOPLE, THE              )
INITIATIVE COMMITTEE               )
SPONSORING 03SENV, consisting )
of ERIC CROFT, HARRY T.            )
CRAWFORD, JR., and DAVID           )
GUTTENBERG,                                  )
                              )
               Appellees.          )
                              
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:   Joanne  M.  Grace,   Assistant
          Attorney  General, Anchorage,  and  Gregg  D.
          Renkes,   Attorney   General,   Juneau,   for
          Appellants.     Peter    J.    Aschenbrenner,
          Aschenbrenner  Law Offices, Inc.,  Fairbanks,
          and  Jeffrey M. Feldman, Feldman &  Orlansky,
          Anchorage, for Appellees.  Peter J.  Maassen,
          Ingaldson,  Maassen & Fitzgerald,  Anchorage,
          for  Amicus  Curiae  Alaska  Public  Interest
          Research Group.

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

          CARPENETI, Justice.
I.   INTRODUCTION

          Because of the need for resolution of the issues raised

in  this case before the election, we issued our Order on  August

20, 2004, with an opinion to follow.  This is that opinion.1





          A  citizens  group  obtained sufficient  signatures  to

place  on the November 2004 ballot an initiative restricting  the

governors  power to temporarily appoint a United States  senator.

This  case concerned whether the initiative should go before  the

voters.

          The   Alaska   Constitution  provides   that   if   the

legislature enacts legislation that is substantially the same  as

a  proposed  initiative, the initiative  is  void.   Because  the

legislature  enacted legislation that addresses the  same  topic,

the  lieutenant governor removed the initiative from the  ballot.

This  case first required us to determine whether the legislation

is  substantially the same as the initiative so as to  render  it

void under the Alaska Constitution.  We decided this question  in

the negative.  Because we concluded that the principal purpose of

the  initiative  is to completely remove from  the  governor  all

power  to  make  temporary appointments to the office  of  United

States  senator,  while  the effect  of  the  legislation  is  to

preserve  in  all  cases the governors power  to  make  temporary

appointments to that office, we held that the legislation is  not

substantially the same as the initiative.

          The   Seventeenth  Amendment  to  the   United   States

Constitution  provides  that the legislature  of  any  state  may

empower the governor to make a temporary appointment of a  United

States  senator when a vacancy occurs in that office.  The  state

argues   that  this  power  is  reserved  to  the  Alaska   State

Legislature  and may not be exercised by the people  through  the

initiative.  The initiative sponsors respond that this dispute is

not subject to resolution before the election; they claim that it

will  only be ripe for decision if the initiative passes.   Thus,

the  case required that we determine whether pre-election  review

of  the initiative is appropriate under our law.  We decided this

          question also in the negative.  We concluded that pre-election

review may extend only to subject-matter restrictions that  arise

from  Alaska  law  and that specifically address  the  initiative

process   or  to  proposals  that  are  clearly  unlawful   under

controlling  authority.   Because the proposed  initiative  meets

neither  of  these tests, we held that it should  go  before  the

voters  and  that the states Seventeenth Amendment challenge  was

premature.

          Accordingly,  we  directed the lieutenant  governor  to

place the initiative on the November ballot.

 II. FACTS AND PROCEEDINGS

          In  Alaska  the  peoples right to enact legislation  by

initiative   is   guaranteed  by  article  XI   of   the   Alaska

Constitution, which states: The people may propose and enact laws

by  the initiative, and approve or reject acts of the legislature

by   the   referendum.2   Once  an  application  for  a  proposed

initiative has been signed by one hundred qualified voters, it is

filed  with  the  lieutenant  governor,  who  must  certify   the

initiative if he finds it in the proper form.3

          On  September  4,  2003 an initiative  committee  named

Trust  the People sought to exercise the power granted by article

XI.   The  committee  submitted an initiative application  for  a

proposed  bill entitled An Act Relating to Filling a  Vacancy  in

the Office of United States Senator (03-SENV, also referred to as

the  initiative).  The proposed initiative was intended to repeal

former AS 15.40.010, which gave the governor the power to fill  a

vacancy  in  the office of United States senator by  appointment.

Under  the  prior  law, if thirty months or less  remained  in  a

vacating  senators term, the governors appointee would  serve  as

senator  for the remainder of the term.  When the initiative  was

submitted, AS 15.40.010 provided:

          When a vacancy occurs in the office of United
          States  senator, the governor, at least  five
          days after the date of the vacancy but within
          30 days after the date of the vacancy, shall
          (1)  appoint a qualified person who,  if  the
          predecessor  in  office was  nominated  by  a
          political party, has been, for the six months
          before  the date of the vacancy, and  is,  on
          the date of appointment, a member of the same
          political party as that which  nominated  the
          predecessor  in  office to fill  the  vacancy
          temporarily  until  the  vacancy  is   filled
          permanently by election; and
          (2)  by  proclamation  and  subject  to  this
          chapter, call a special primary election  and
          a  special  election to fill the vacancy  for
          the  remainder of the term of the predecessor
          in  office  if  the predecessors  term  would
          expire more than 30 calendar months after the
          date of the vacancy.[4]
          
Under  the  proposed initiative, all vacancies in the  office  of

United  States senator must be filled by the voters in a  special

election  and  the governor would have no power  of  appointment.

Under  the  proposed  initiative there  could  be  no  incumbency

advantage  because no temporary appointment would  be  permitted.

The  procedural  aspects  of the special election  (timing,  term

limits, primaries, etc.) would mirror the current method by which

vacancies  in  the  office  of United States  representative  are

filled  by special election.5  We set out the proposed initiative

in its entirety in the margin.6



          After   the  initiative  was  submitted  to  Lieutenant

Governor  Loren Leman, it was referred to the Department  of  Law

for  pre-certification  review.  When  a  month  passed  and  the

initiative  had  not  been certified, Trust the  People  filed  a

complaint against Lieutenant Governor Leman and Attorney  General

Gregg Renkes (Trust the People I).  Trust the People alleged that

Lieutenant  Governor  Leman  and  Attorney  General  Renkes  were

unlawfully   delaying  certification  in  violation   of   Alaska

statutory  and  constitutional law.  Trust the  People  sought  a

declaratory judgment that the lieutenant governor was required to

immediately  certify  the initiative and  prepare  petitions  and

booklets  for  circulation.  A hearing concerning the  delay  was

held  on  October  10,  2003  before Superior  Court  Judge  Mark

Rindner.   At the hearing the parties agreed that by October  27,

          2003 the lieutenant governor would either certify the initiative

and  provide Trust the People with petition booklets as  required

by  law  or  provide  Trust the People with a written  denial  of

certification.  A written order concerning the parties  agreement

was entered on October 13, 2003.

          On  October  20, 2003 the Department of Law  issued  an

opinion  stating that the initiative is not a proper exercise  of

the  law  making power reserved to the people under Article  XII,

Section  11 of the Alaska Constitution.7  The Department  of  Law

determined  that, under the Seventeenth Amendment to  the  United

States  Constitution,  the  people  do  not  have  the  power  to

determine  by  initiative the method by which  vacancies  in  the

office of U.S. senator will be filled.  The Seventeenth Amendment

states in full:

          The  Senate  of  the United States  shall  be
          composed  of  two Senators from  each  State,
          elected by the people thereof, for six years;
          and  each  Senator shall have one vote.   The
          electors   in  each  State  shall  have   the
          qualifications requisite for electors of  the
          most    numerous   branch   of   the    State
          legislatures.
               When    vacancies    happen    in    the
          representation  of any state in  the  Senate,
          the  executive authority of such State  shall
          issue   writs  of  election  to   fill   such
          vacancies: Provided, That the legislature  of
          any  State may empower the executive  thereof
          to  make  temporary  appointments  until  the
          people fill the vacancies by election as  the
          legislature may direct.
               This amendment shall not be so construed
          as  to  affect the election or  term  of  any
          Senator  chosen  before it becomes  valid  as
          part of the Constitution.
          
Concluding  that the plain language of the Seventeenth  Amendment

vests  the  power to determine how to fill U.S. Senate  vacancies

exclusively  in  each  states  formal  representative  body,  the

department  recommended that the lieutenant governor not  certify

the  initiative because it proposed a law that may not be enacted

via  the  initiative process.  Lieutenant Governor  Leman  denied

certification of the initiative on October 21, 2003.

          On  October 30, 2003 Judge Rindner conducted a  hearing

regarding  the denial of certification.  Trust the People  argued

that  the  lieutenant  governors power to deny  certification  of

initiatives  was limited to precise state constitutional  .  .  .

guidelines (presumably those set out in article XI, section 7  of

the  Alaska  Constitution)  and  had  therefore  been  improperly

exercised  in this case.  Trust the People also argued  that  any

question regarding the constitutionality of the initiative  could

be  addressed through review by the courts only if and  when  the

voters  of  Alaska passed the initiative.  The state argued  that

Lieutenant Governor Leman had the power to deny certification  if

the  initiative concerned a subject that was outside the  peoples

initiative power, and that denial was proper in this case because

under  federal  constitutional law, the method  of  filling  U.S.

Senate vacancies cannot be determined by initiative.

          Relying  on  our decision in Kodiak Island  Borough  v.

Mahoney,8 Judge Rindner ruled that the constitutionality  of  the

proposed initiative should not be considered unless and until the

Alaska voters enact the initiative into law.  Accordingly,  Judge

Rindner  held  that Lieutenant Governor Leman  erred  by  denying

certification  and  ordered  him to certify  the  initiative  and

provide  petition  books  to Trust the  People.9   Judge  Rindner

emphasized  that  he was not reaching the merits  of  the  states

Seventeenth Amendment argument.  The state appealed but  did  not

seek  a  stay  of  the superior courts order.  Trust  the  People

circulated  the  petition and obtained almost 50,000  signatures.

On  October  30,  2003  Lieutenant Governor Leman  certified  the

petition  for  inclusion  on the ballot  for  the  November  2004

statewide general election.

          Briefing for the appeal of the superior courts decision

was  completed by early May.  On June 5, 2004 House  Bill  (H.B.)

414, An Act relating to filling a vacancy in the office of United

States  senator,  and to the definition of political  party;  and

          providing for an effective date10 was enacted into law without

Governor  Murkowskis  signature.11  House Bill  414  provides  in

pertinent part:

          Section 1.   The uncodified law of the  State
          of  Alaska is amended by adding a new section
          to read:
          LEGISLATIVE INTENT.  It is the desire of this
          legislature that the provisions of secs.  2-8
          and  10  of this Act, which are substantially
          similar  to  those proposed in an  initiative
          petition,  not be repealed for at  least  two
          years after the Acts effective date.
          Section 2.  AS 15.40.140 is amended to read:
          Sec.  15.40.140 Condition and time of calling
          of  special election.  When a vacancy  occurs
          in  the  office of United States  senator  or
          United  States representative,  the  governor
          shall,   by  proclamation,  call  a   special
          election  to be held on a date not less  than
          60, nor more than 90, days after the date the
          vacancy  occurs.   However,  if  the  vacancy
          occurs  on a date that is less than  60  days
          before  or  is on or after the  date  of  the
          primary election in the general election year
          during  which a candidate to fill the  office
          is  regularly elected, the governor  may  not
          call a special election.
          Section  3.  AS 15.40 is amended by adding  a
          new section to read:
          Sec.  15.40.145.   Temporary  Appointment  of
          United States Senator.  When a vacancy occurs
          in  the office of United States senator,  the
          governor  may, at least five days  after  the
          date  of the vacancy but within 30 days after
          the  date of the vacancy, appoint a qualified
          individual  to  fill the vacancy  temporarily
          until  the  results of the  special  election
          called  to  fill  the vacancy are  certified.
          If  a special election is not called for  the
          reasons   set   out  in  AS  15.40.140,   the
          individual shall fill the vacancy temporarily
          until   the  results  of  the  next   general
          election are certified.
          
Following  passage of H.B. 414, this court on June  9  asked  the

parties to address whether the case was moot, or to file a motion

to  dismiss.   On June 16 Lieutenant Governor Leman  removed  the

initiative  from the ballot.  The lieutenant governor, concurring

with an opinion from Attorney General Renkes, determined that the

proposed initiative was void because it was substantially similar

to H.B. 414.  The state then sought to dismiss its appeal to this

court,  arguing that passage of H.B. 414 had rendered the  appeal

moot.

          Trust  the People opposed dismissal, claiming that  the

proposed initiative and H.B. 414 were not substantially the same.

Trust  the  People  filed  a new action in  the  superior  court,

seeking a declaratory judgment that the proposed initiative  must

be  placed  on the ballot for the statewide general  election  in

November  2004 and requesting injunctive relief to  prohibit  the

state  from  interfering with a popular vote  on  the  initiative

(Trust the People II).12  Trust the People argued that Lieutenant

Governor  Lemans  removal  of  the  initiative  from  the  ballot

violated  state  statutory  and constitutional  law.   The  state

sought to stay the proceedings in Trust the People II pending our

resolution  of its appeal in Trust the People I.  Superior  Court

Judge  Morgan  Christen  denied the  states  motion  and  ordered

expedited  consideration of the case.  The  state  then  filed  a

petition  for  review,  seeking to reverse  the  superior  courts

denial of a stay.

          On  July  8  we  issued  an order granting  the  states

petition  for  a stay in Trust the People II.  We  informed  both

parties  that  we  would consider the issue  of  mootness  on  an

expedited basis when we considered the merits of Trust the People

I.   Oral argument was held July 21, 2004.  On August 20, 2004 we

issued the order set out in footnote 1.

          In  addition to the briefs filed by the parties to this

case,  the  Alaska  Public Interest Research Group  (AKPIRG)  has

filed a brief as amicus curiae.

III. STANDARD OF REVIEW

          This  appeal raises questions of both state and federal

constitutional  law,  which  we  review  using  our   independent

judgment.13  We liberally construe state constitutional provisions

that  apply  to  the initiative process, particularly  provisions

          concerning subject matter limitations.14  Liberal construction of

federal constitutional provisions, however, is not appropriate.15

IV.  DISCUSSION

          Resolution of this case requires consideration  of  two

issues: (1) Is the initiative void under article XI, section 4 of

the  Alaska Constitution, which states that an initiative is void

if  the  legislature passes substantially the same measure?   (2)

Should the states Seventeenth Amendment challenge to the proposed

initiative  be  resolved  before the initiative  is  put  on  the

ballot?

     A.   Is  the  Proposed  Initiative Void  Under  Article  XI,
          Section  4  of  the Alaska Constitution Because  It  Is
          Substantially the Same as H.B. 414?
          
          Article  XI,  section  4  of  the  Alaska  Constitution
provides:

          An  initiative petition may be filed  at  any

          time. The lieutenant governor shall prepare a

          ballot title and proposition summarizing  the

          proposed  law, and shall place  them  on  the

          ballot for the first statewide election  held

          more  than  one  hundred  twenty  days  after

          adjournment   of   the  legislative   session

          following   the  filing.   If,   before   the

          election, substantially the same measure  has

          been enacted, the petition is void.[16]

(Emphasis added.)

          The proposed initiative states in relevant part that:

          When a vacancy occurs in the office of United

          States     senator    or    United     States

          representative,   the  governor   shall,   by

          proclamation, call a special election  to  be

          held  on  a date not less than 60,  nor  more

          than  90,  days  after the date  the  vacancy

          occurs.  However, if the vacancy occurs on  a

          date  that is less than 60 days before or  is

          on  or after the date of the primary election

          in  the general election year during which  a

          candidate  to  fill the office  is  regularly

          elected, the governor may not call a  special

          election.

The proposed initiative would repeal the statutory provisions  in

AS   15.40.010  empowering  the  governor  to  make  a  temporary

appointment to fill a senate vacancy.  According to the impartial

summary  of the initiative prepared for the petition booklets  by

the  lieutenant governor, the initiative would repeal state  laws

by  which the governor makes a temporary appointment of a Senator

who serves until an election can be held.

          Following  the  submission of  the  initiative  to  the

lieutenant  governor  for placement on  the  ballot,  the  Alaska

legislature  passed  H.B.  414.   In  contrast  to  the  proposed

initiative,  H.B. 414 retains the governors temporary appointment

power in every case in which a senate vacancy might arise.  House

Bill 414 states in relevant part:

          When a vacancy occurs in the office of United

          States  senator, the governor may,  at  least

          five  days after the date of the vacancy  but

          within 30 days after the date of the vacancy,

          appoint  a qualified individual to  fill  the

          vacancy temporarily until the results of  the

          special  election called to fill the  vacancy

          are  certified.  If a special election is not

          called  for  the  reasons  set  out   in   AS

          15.40.140,  the  individual  shall  fill  the

          vacancy temporarily until the results of  the

          next general election are certified.

          Notwithstanding   this   difference,   the   lieutenant

governor  determined  that  the  initiative  and  H.B.  414   are

substantially  the same.  Accordingly, he deemed  the  initiative

void and removed it from the ballot.  The parties sharply dispute

whether the initiative and the bill are in fact substantially the

same.

          The   definition  of  substantially  the  same  is  not

apparent from the text of the Alaska Constitution.  And in Warren

v.  Boucher,17 we noted that there is nothing in the  legislative

history of the article, or in the vigorous floor debates thereon,

which  points to an agreed upon meaning or a consciously  adopted

definition  of what this critical language should  mean  or  that

offers  any helpful discussion of what was the intended scope  of

the  words.18   We  also  noted that  the  words  substantial  or

substantially are relative, inexact terms, whose meaning is quite

elusive.19  We therefore examined the question against the  total

structure of Alaskas constitutional system of direct legislation.20

          We   noted   that   the  original   proposal   of   the

Constitutional Convention Committee called for [l]aws proposed by

initiative  [to]  be submitted to the voters .  .  .  unless  the

legislature enacts the measure initiated . . . .21  The insertion

of   substantially  the  same measure in  place  of  the  measure

demonstrated that the framers wished to allow some flexibility to

the  legislature.22   At  the same time,  we  noted  the  framers

conviction  that popular enactment of legislation should  not  be

frustrated by legislative veto.23  We ultimately decided  that  a

legislative  act is substantially the same as the  initiative  it

seeks  to  supersede if in the main the legislative act  achieves

the  same  general  purpose as the initiative [and]  accomplishes

that  purpose  by means or systems which are fairly comparable.24

We also noted that [t]he broader the reach of the subject matter,

the  more  latitude must be allowed the legislature to vary  from

the  particular  features  of  the  initiative.25   Thus,  Warren

developed  a  three-part  test to determine  whether  a  proposed

initiative  and legislation are substantially the same:  A  court

must  first determine the scope of the subject matter, and afford

the  legislature greater or lesser latitude depending on  whether

the  subject  matter is broad or narrow; next, it  must  consider

          whether the general purpose of the legislation is the same as the

general  purpose of the initiative; and finally it must  consider

whether  the means by which that purpose is effectuated  are  the

same in both the legislation and the initiative.

          Turning to the first part of the test, we note that the

subject  matter of the legislation and the initiative  before  us

filling senate vacancies  is narrow.  It is far narrower than the

subject  matter of campaign finance reform that we considered  in

Warren.   The  legislation in Warren was broad  and  complicated,

touching  upon  a  great  range  of  topics,  including  campaign

spending   limits,  reporting  of  contributions  and   expenses,

restrictions  on  anonymous  contributions,  penalties  for  non-

compliance,  the creation of an elections oversight committee  to

monitor  elections, and several other topics.26  In  the  present

case,  the legislation is simple and straightforward, essentially

dealing with only one substantive topic: filling of a U.S. Senate

vacancy.   We agree with Trust the Peoples assessment that  [t]he

simpler and more focused a law is, the fewer details that can  be

adjusted  without effecting a fundamental change in the  measures

purpose and effect.  As such, we begin our analysis with the view

that  the  legislature should be accorded less  latitude  in  its

attempts to vary from the particular features of the initiative.27

          Turning  to the next part of the test, we consider  the

general  purpose  of  both  the initiative  and  H.B.  414.   The

controversy  before us differs fundamentally from  the  issue  we

addressed in Warren.  In that case, both the initiative  and  the

proposed  legislation  imposed  greater  controls  over  election

contributions and expenditures; and despite some differences,  it

was  clear that they both addressed the subject matter in similar

ways.28  (Indeed, the dispute in Warren turned almost exclusively

on  the  third part of the test, the means by which the competing

versions  of  the  law sought to vindicate their  clearly  common

purpose  of  campaign  finance  reform.)   We  stated  that   the

legislatures changes to the initiative did not vitiate[] the aims

          of the initiative, but ma[de] those aims more feasible of

achievement.29  The legislature had made numerous changes to  the

initiative  that implicated the scope of the law, its enforcement

mechanisms, and other structural issues concerning the regulation

of  campaign finance reform.  But because these changes were seen

as   promoting  the  shared  goals  of  both  the  bill  and  the

initiative,  we were willing to accept the legislatures  bill  as

substantially the same as its initiative counterpart, even though

there were in fact differences in the texts.30  But we cannot find

that  the competing versions of the legislation before us in this

case  share  a common purpose.  Indeed, as we explain more  fully

below,  we  believe  the initiative and H.B.  414  have  opposite

objectives.

          In  order to determine the respective purposes of  H.B.

414  and  the  initiative, we look to their  texts  to  determine

intent.31  This, in turn, requires us to review the circumstances

surrounding the origins of the initiative.

          As  amended in 1998, AS 15.40.010 provided in  relevant

part:

          When a vacancy occurs in the office of United

          States senator, the governor, within 30  days

          after  the  date  of the vacancy,  shall  (1)

          appoint a qualified person . . . to fill  the

          vacancy  temporarily  until  the  vacancy  is

          filled    permanently   by   election;    and

          (2) . . . call a special primary election and

          a  special  election to fill the vacancy  for

          the  remainder of the term of the predecessor

          in  office  if  the predecessors  term  would

          expire more than 30 calendar months after the

          date of the vacancy.[32]

In  2002  the  legislature amended the statute  to  restrict  the

governor  from  filling a vacancy until at least  five  days  had

passed  from  the  date of the vacancy.33  It  was  against  this

background  that  Trust  the People formed  for  the  purpose  of

changing  the  law by initiative.  What was the  intent  of  that

initiative?

          We have previously held that in determining the meaning

that voters might attach to a ballot initiative, we will look  to

published arguments made in connection with the initiative.34  At

the  time  of our August 20, 2004 order,35 there was very  little

published material available because the voters handbook has  not

yet  been  published.  However, the lieutenant governors  neutral

statement of the initiatives purpose, prepared pursuant to  state

law36 for the petition booklets, was available for our review. The

lieutenant  governor, in his neutral statement of the purpose  of

the  proposed initiative, wrote that the initiative would  repeal

state laws by which the governor makes a temporary appointment of

a  Senator  who serves until an election can be held.  Trust  the

People  insists that H.B. 414 does not accomplish  this  purpose,

but instead achieves precisely the opposite result.

          The critical difference between the proposed initiative

and  the  bill  is  that while the proposed initiative  precludes

gubernatorial appointment of a United States senator in each  and

every  case of vacancy, H.B. 414 permits the governor to  make  a

temporary appointment pending an election to fill the vacancy  in

each  and  every  case.   This means  that,  while  the  proposed

initiative provides that in every instance Alaskas United  States

Senate  seats  will be filled only by Alaskan  voters,  H.B.  414

would allow an unelected executive appointee to fill the seat for

an interim period that could last as long as five months.37

          The  state argues that the initiative and the bill  are

substantially the same because they accomplish the  same  general

goal.   That is, under both the act and the initiative, a special

election  largely  replaces the appointment process,  unless  the

relevant general election will occur soon after the vacancy.  But

the  states  argument  does not take into consideration  the  two

critical  differences noted above between the texts of  H.B.  414

          and the proposed initiative: (1) H.B. 414 retains the executive

appointment  power  in every case while the  proposed  initiative

repeals that power entirely, which means that (2) H.B. 414 allows

appointees  to fill U.S. Senate seats while the initiative  seeks

to ensure that an unelected appointee will never represent Alaska

in  the  U.S. Senate.  We conclude that these differences are  so

important that it cannot be said that the proposed initiative and

H.B. 414 are substantially the same.

          The  state  advances another argument  to  support  its

conclusion  that  H.B.  414  is substantially  the  same  as  the

initiative.  It notes that, pursuant to article XI, section 6  of

the Alaska Constitution, the legislature may amend an initiatives

terms  at any time.38  The state asserts that had the legislature

not  passed H.B. 414 to replace the initiative, it could just  as

easily  have  made the same changes to the law  by  amending  the

initiative  once it was enacted.  In Warren, we  noted  that  the

legislatures  amendatory  power  is  broad  and,  in  dicta,   we

suggested  that the legislatures power to supplant an  initiative

by  enacting new legislation might be identical to its  power  to

amend.39   But  the  power  to avoid an  initiative  by  enacting

legislation  should not be equated with the  power  to  amend  an

initiative enacted by the voters.  While the dicta in  Warren  v.

Boucher  might  be read to equate the two powers,  they  are  not

equal.   This  is  because  the Alaska Constitution  contains  no

explicit  limitation  on  the  legislatures  power  to  amend  an

initiative  enacted by the voters,40 but it does contain  such  a

limitation  on  the  legislatures  power  to  avoid  a   proposed

initiative:  Legislation designed to avoid a vote on  a  proposed

initiative  must  be substantially the same as the  initiative.41

Finally debate surrounding the adoption of article XI, section  4

reflects  the framers concern that the legislature be given  only

the  power  to amend and not the power to destroy.42  Thus,  even

amendments   to   popularly-initiated  legislation   must   still

effectuate[] the intent of the electorate,43 and an amendment that

          so vitiates an act passed by initiative as to constitute its

repeal is not acceptable.44

          The  essential inquiry, then, is whether any difference

between  H.B. 414 and the initiative so vitiates the  initiatives

uncontradicted  general  purpose  as  to  render  H.B.  414   not

substantially  the  same.   Trust the  People  asserts  that,  by

continu[ing]   the   governors  appointment  power   and   merely

expand[ing]  the  period  during  which  a  special  election  is

required,  H.B.  414  preserves and codifies both  the  governors

appointment  power  and  the incumbency advantage  given  to  his

appointees  when  they  later stand for election.   According  to

Trust  the  People, the initiative and the bill  thus  materially

differ.  The state does not deny that this difference exists, but

seeks  to  downplay or justify its effects, insisting that  [t]he

act  and the initiative do accomplish the same general goal,  and

that  the  short-term nature of the governors  appointment  power

under  H.B.  414 is not significant in light of the more  general

goals of the initiative and the act.

          The   state   also   argues   that   the   legislatures

modifications to the proposed initiative were necessary,  because

the  initiative,  as drafted, is ill-conceived  legislation  that

could  seriously  cripple  or frustrate  the  sound  workings  of

government. According to the state, even a temporary  vacancy  in

one  of  Alaskas  United States Senate seats  (which,  under  the

initiatives  framework could last as long as five  months)  could

damage  Alaskas interests in the national government and  make  a

difference  in  the passage of legislation important  to  Alaska.

The  state further argues that [f]illing senate vacancies quickly

also  could  be  a  matter  of  national  importance,  because  a

terrorist attack on the Capitol could wipe out the United  States

Senate, and [t]he ability of one branch of the federal government

to  function  might depend on the states ability to  fill  vacant

seats  quickly.  While the state raises serious policy  arguments

in  favor  of  H.B.  414,  they  relate  to  the  wisdom  of  the

          legislation  and thus are more properly directed to the voters

considering  the  proposed initiative  and not  to  the  question

whether  the  proposed initiative and H.B. 414 are  substantially

the  same.   As has been noted, the relevant judicial inquiry  is

not  whether the provisions are wise, but whether the legislative

act is substantially the same as the initiative.45

          The state also contends that an appointee running for a

vacant  seat in a general or special election may not necessarily

derive  any  benefits  from his or her status  as  an  incumbent,

thereby  minimizing  the differences between  H.B.  414  and  the

proposed  initiative.   The  state  asserts  that  [a]  temporary

appointee who is thousands of miles from Alaska and is trying  to

learn how to be a senator right before the election might be at a

disadvantage as against a candidate present in Alaska,  garnering

support  and  raising  money.  Indeed, the  state  says,  someone

wishing to permanently fill the seat might well decline to take a

temporary  appointment.  But had the legislature truly sought  to

assure   that  Alaska  maintained  competent  representation   in

Washington  while  eliminating any  incumbency  advantage  for  a

temporary appointee, it could have tailored H.B. 414 to forbid  a

governors  appointee from running for election after appointment.

In  fact, the legislative history indicates that such a provision

was proposed and rejected.46  This casts considerable doubt on the

states  claim  that H.B. 414 is substantially  the  same  as  the

proposed initiative.

          We  conclude that the intent of the proposed initiative

is  to  strip  the governor of appointment power, to ensure  that

occupants of Alaskas seats in the United States Senate are chosen

by  the  voters, and to eliminate all of the perceived advantages

that an incumbent appointee might receive in a special or general

election to fill the vacancy.  House Bill 414 preserves the power

of  gubernatorial  appointment in every case  of  a  vacancy,  it

allows  vacancies in the United States Senate to be filled  first

by  executive appointment rather than only by the voters, and  it

          preserves potential incumbency advantages that might be conferred

on the executives appointee.  Because the initiative and H.B. 414

seek  to  accomplish different objectives, they do  not  share  a

common   purpose  and  they  are  not  substantially  the   same.

Accordingly, we hold that the initiative has not been  voided  by

enactment of H.B. 414.

     B.   Should the Constitutionality of the Proposed Initiative
          Be Reviewed Before the November 2004 Election?
          
          The  state argues that, even if the petition  were  not

voided on grounds of substantial sameness, we should hold that it

cannot  be  placed on the November ballot because the Seventeenth

Amendment  to  the U.S. Constitution does not allow the  proposed

change to be made by initiative.  Trust the People and the amicus

respond  that pre-election review of the initiative is  premature

and  that we should only determine its constitutionality  if  the

proposal  is  adopted at the election.  The  state  rejects  this

contention,   arguing  that  pre-election  judicial   review   is

appropriate  because,  it  claims, the  initiative  violates  the

Seventeenth  Amendment.   Because we conclude  that  pre-election

judicial  review  may extend only to subject matter  restrictions

that  arise  from  a  provision  of  Alaska  law  that  expressly

addresses   and  restricts  Alaskas  constitutionally-established

initiative  process  or to proposals that  are  clearly  unlawful

under  controlling authority, we agree with Trust the People  and

the  amicus that pre-election review is not appropriate  in  this

case.   Accordingly, we affirm the decision of the superior court

holding  that  the lieutenant governor could not engage  in  pre-

election review of the Seventeenth Amendment issue.

          As  we have recognized on other occasions, articles  XI

and  XII are the only provisions of the Alaska Constitution  that

explicitly   mention  the  initiative  process.47   Specifically,

article  XI,  section 7, describes certain express subject-matter

restrictions:

               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.[48]

Article  XII, section 11, in turn, specifies that the electorates

power  to  legislate  by initiative is always  subject  to  these

express  restrictions; section 11 also more generally  recognizes

that the initiative process may be implicitly restricted by other

provisions, but only if such provisions make the process  clearly

inapplicable:

               Unless    clearly   inapplicable,    the
          law-making powers assigned to the legislature
          may  be  exercised by the people through  the
          initiative,  subject to  the  limitations  of
          Article XI.[49]
          
           These provisions largely define the permissible  scope

of  pre-election subject-matter review in Alaska.50  Early on, in

Boucher v. Engstrom,51 we approvingly noted the general rule that

courts  will  refrain  from  giving  advisory  opinions  on   the

constitutionality of statutes, but recognized that  an  exception

to  this principle would apply in regard to review of initiatives

prior  to  submission to the electorate for  approval.52   As  we

expressly  described it in Boucher, this exception applied  to  a

limited set of challenges:

               This  court,  . . . although recognizing
          the  general  limitation  that  only  enacted
          legislation  is  subject to judicial  review,
          [has]  held that our courts are empowered  to
          review an initiative to ascertain whether  it
          complies  with  the particular constitutional
          and     statutory    provisions    regulating
          initiatives.[53]
          
We  stressed that it was necessary to apply the exception to this

set  of  challenges  in  order  to enforce  the  meaning  of  the

initiative process as set out in Alaskas constitution.  We said:

          The  people  for  their own  protection  have
          provided  that the initiative  shall  not  be
          employed  with  respect to  certain  matters.
          Unless the courts had power to enforce  those
          exclusions, they would be futile.[54]
          
          In  initiative  cases decided since  Boucher,  we  have

consistently restated the  language of Boucher that  limits  pre-

election review to cases involving compliance with the particular

constitutional and statutory provisions regulating initiatives.55

Most  recently, in Alaska Action Center, Inc. v. Municipality  of

Anchorage,56 referring to this type of challenge, we stressed that

[s]eparation  of  powers  principles are  not  offended  by  this

procedure, as these restrictions were devised to prevent  certain

questions from going before the electorate at all.57

          Alaska  Action  Center  involved  a  challenge   to   a

municipal clerks decision rejecting a proposed initiative on  the

ground  that  it provided for an appropriation, in  violation  of

article XI, section 7, and AS 29.26.100.  In deciding the  claim,

we  expressly  followed the conventional rule that an  initiative

may  be  reviewed before going to the voters to ensure compliance

with  the  particular  constitutional  and  statutory  provisions

regulating initiatives.58  Finding that [t]he proscriptions of AS

29.26.100  and  article XI, section 7 of the Alaska  Constitution

are  such limitations, we concluded that pre-election review  was

proper.59   Thus,  Alaska Action Center simply applied  the  test

articulated  in  Boucher.   To  be  sure,  Alaska  Action  Center

distinguished  this  kind of reviewable subject-matter  challenge

from  [o]ther  challenges . . . grounded in  general  contentions

that the provisions of an initiative are unconstitutional. 60  But

this  distinction  simply describes a baseline  for  pre-election

review; although it usefully points out that pre-election  review

of  an  initiative  proposal  usually involves  a  subject-matter

challenge    as  opposed  to  a  general  claim  of   substantive

illegality   it  does not say that all subject-matter  challenges

must automatically qualify for full pre-election review.

          By  consistently pointing out that pre-election  review

is needed to ensure compliance with the particular constitutional

and  statutory provisions regulating initiatives  that  is,  with

those   restrictions  specifically  devised  to  prevent  certain

          questions from going before the electorate  our cases establish

that pre-election review does not encompass all potential subject-

matter restrictions, but extends only to the restrictions imposed

by  Alaska constitutional and statutory provisions regulating the

initiative  process.  So interpreted, our cases make pre-election

review   appropriate  to  ensure  compliance  with  the   express

initiative  restrictions set out in article XI, section  7.   Our

cases  similarly  allow pre-election review, under  article  XII,

section 11, to ensure compliance with subject-matter restrictions

set out in other legal provisions; but under the express terms of

article XII, section 11, the scope of review would be limited  to

cases  of  obvious  non-compliance  cases  where  the  initiative

process would be clearly inapplicable.61

          By  contrast, the state argues that our cases stand for

the  proposition  that whenever the issue is whether  voters  can

enact  the  law by initiative, it is appropriate for pre-election

review.  The state thus argues for a broad rule that would  allow

a  full  range  of  pre-election  review  of  all  subject-matter

challenges,  regardless  of the source of  the  restriction.   In

arguing  that  full pre-election review is appropriate  for  even

those subject-matter challenges not enumerated in Alaska law, the

state  overlooks the limiting language noted above that  we  have

employed in several cases.

          The state argues that we reviewed the constitutionality

of an initiative prior to its placement on the ballot in Yute Air

Alaska, Inc. v. McAlpine.62  Challengers to the initiative in Yute

Air  argued  that the initiative was unconstitutional because  it

concerned two subjects, which violated article II, section 13  of

the  Alaska  Constitution  which  requires  that  every  bill  be

confined  to one subject;63 they also argued that the  initiative

directed the executive to seek repeal of the Jones Act,  and  was

thus unconstitutional because it was not a proper subject for  an

initiative   under  article  XI,  section   1   of   the   Alaska

Constitution,  which  limits the use of  the  initiative  to  the

          enactment of laws.64  We resolved these questions on the merits

before  the  initiative was placed on the  ballot.65   The  state

argues that because we reviewed an initiative to determine if  it

violated  a  subject matter limitation not enumerated in  article

XI,  section 7 of the Alaska Constitution in Yute Air, we  should

now  likewise  determine whether the people are  restricted  from

enacting  by initiative legislation on the subject of filling  of

senate  vacancies before the election.  But unlike the  challenge

raised   here,   which  alleges  that  the  Federal  Constitution

prohibits   enactment  by  initiative,  the  challenge   to   the

initiative  in Yute Air concerned two limitations placed  on  the

initiative  process  by  the  Alaska  Constitution.   Thus,  pre-

election  review  in  Yute Air did not  violate  our  holding  in

Boucher  v.  Engstrom  that  such review  should  be  limited  to

ascertaining   whether  an  initiative  is  in  compliance   with

constitutional provisions that regulate legislative enactment via

initiative.66

          The  state  also  relies  on Alaskans  for  Legislative

Reform v. State,67 in which an initiative that would have imposed

term limits on legislators was denied a place on the ballot.   We

note  at  the  outset  that no party in that  case  opposed  pre-

election review.  As Judge Shortell noted in his opinion (adopted

by  this  court),  the issue was not raised at  the  trial  level

because  both  parties  [had]  the intention  of  obtaining  pre-

election  dispositive review.68  It appears  that  there  was  no

consideration  by any court at any level of the question  whether

pre-election  review  was proper.  Second,  to  the  extent  that

Alaskans  for Legislative Reform supports pre-election review  of

claims  that  a  term  limits initiative is unconstitutional,  it

appears  to  have  been  overruled by Kodiak  Island  Borough  v.

Mahoney,69  where we declined to allow pre-election review  of  a

term-limits proposal.70  Finally, since Judge Shortell ordered the

initiative removed from the ballot, the case was clearly ripe for

immediate review;71 indeed, the only way for this court to  avoid

          pre-election review would have been to declare sua sponte that

Judge Shortell erred in addressing the constitutional issue.

          The  state  also relies on Brooks v. Wright,72  arguing

that  it  raised a subject-matter claim that was subject to  pre-

election review.  But for present purposes, it is crucial to take

account  of the exact nature of the claim raised in Brooks.   The

case  involved  an initiative proposing to ban all  use  of  wolf

snares.  The challengers alleged that article VIII of the  Alaska

Constitution did not allow the initiative process to be used  for

game-management   purposes   because   the   language   of   that

constitutional provision and the provisions grant of trustee-like

powers  to  the  state implicitly gave the legislature  exclusive

authority to manage Alaskas natural resources.73  But while basing

their  pre-election challenge on this constitutional theory,  the

initiatives  opponents  did not actually  seek  review  of  their

article  VIII claim, as such.  Instead, they argued more narrowly

that  the  implied subject-matter restriction imposed by  article

VIII  violated  the  clearly inapplicable test  of  article  XII,

section  11: under Article XII, the initiative process is clearly

inapplicable to resource management decisions[.]74  So  asserted,

the  challenge  in  Brooks did more than claim  a  subject-matter

restriction  embedded in article VIII; it further  asserted  that

this  restriction  implicated  one of  the  Alaska  Constitutions

particular  provisions governing the proper scope of initiatives:

article XII.

          Our opinion in Brooks resolved the constitutional claim

by  applying article XII, section 11s clearly inapplicable  test.

Our opinion acknowledged that [p]re-election review of challenges

to  ballot  initiatives is limited to ascertaining  whether  [the

initiative]  complies  with  the  particular  constitutional  and

statutory provisions regulating initiatives 75 and that [a]rticles

XI  and  XII  are the only provisions of the Alaska  Constitution

that  explicitly mention the initiative process.76  After  noting

that  the   challengers did not claim a violation of one  of  the

          enumerated Article XI limitations, we took pains to point out

that  they  argued,  instead,  that the  initiative  process  was

  clearly  inapplicable  to resource management  decisions  under

article  XII.77   We then applied the article  XII  standard  and

concluded  that  neither  prong of  the  challengers  claim  that

article VIII impliedly restricted using the initiative process to

ban wolf snares was sufficiently persuasive to establish that the

proposed  wolf-snare  ban  was   clearly  inapplicable   to   the

initiative process under Article XII.78

           Brooks thus based its ruling on the article VIII issue

by  using  article  XIIs clearly inapplicable  standard.   By  so

doing,  it  treated  the  claim  as  a  permissible  pre-election

challenge under the narrow rule enunciated in Boucher, which,  as

already  mentioned,  expressly limits the scope  of  pre-election

review  to  particular  constitutional [or] statutory  provisions

regulating initiatives.  Thus, Brooks strongly supports the  rule

that  when  an  alleged  subject-matter violation  hinges  on  an

implied   constitutional   restriction   outside   the   specific

restrictions  enumerated  in  article  XI,  section  7   as   the

challenge  did in Brooks  it is eligible for pre-election  review

only  if  it  meets article XII, section 11s clearly inapplicable

test.

          The  state also relies on Whitson v. Anchorage.79   But

that case supports the conclusion that pre-election review is not

appropriate  here.   In Whitson,  the Municipality  of  Anchorage

challenged  an initiative in court before submitting  it  to  the

voters.   The  municipality  contended  that,  if  enacted,   the

proposed  initiative  would  violate  provisions  of  state   law

implicitly  limiting the electorates right to enact an  ordinance

on  the  topic covered by the proposed initiative.80  In opposing

this  challenge,  the  initiatives  proponents  argued  that  the

challenge  was  premature and could not  be  decided  before  the

election.   But  we disagreed, specifically concluding  that  the

provision qualified for pre-election review because it plainly  .

          . . would conflict with state law and was in clear conflict with

a state statute.81  Whitson thus illustrates an application of the

clear controlling authority exception to the general rule against

pre-enactment review that we referred to in Alaska Action Center.82

          In  sum,  a  narrow interpretation of  the  permissible

scope  of  pre-election review is faithful to our case law,83  is

supported by the strong policies that generally disfavor advisory

opinions, and is justified by the limited purpose of pre-election

review   to  protect the Alaska Constitutions express  provisions

defining the initiative process.84  Because the subject matter at

issue  here  filling senate vacancies  is not specifically barred

from  the  initiative process under article XI,  section  7,  nor

clearly  inapplicable under article XII, section 11, nor  is  its

resolution  clear under controlling authority, we  conclude  that

the  proposed  initiative meets the test for  submission  to  the

voters.   Its ultimate compliance with the Seventeenth  Amendment

falls  outside the proper scope of the lieutenant governors  pre-

election review.

V.   CONCLUSION

          Because  H.B.  414  is not substantially  the  same  as

03SENV, the initiative is not void under the Alaska Constitution.

Because  the  states  Seventeenth  Amendment  argument  does  not

involve a subject matter restriction arising from a provision  of

Alaska   law  that  expressly  addresses  and  restricts  Alaskas

constitutionally-established initiative  process  or  a  proposal

that is clearly unlawful under controlling authority, we AFFIRMED

the  superior courts decision to deny pre-election review of  the

Seventeenth Amendment issue.

          For  these reasons, we directed the lieutenant governor

to  place  Trust the Peoples initiative, 03SENV, on  the  general

election ballot.



































                                                  
_______________________________
     1    The Order provided:

               Trust    the   People,   an   initiative
          committee,   submitted  an  initiative   that
          proposed  to  determine the manner  in  which
          vacancies in Alaskas two United States Senate
          seats  would be filled; after some  delay  in
          the  certification process, Trust the  People
          filed  suit against Lieutenant Governor Loren
          Leman.   The  Lieutenant Governor  eventually
          denied   certification  of  the   initiative,
          determining that the Seventeenth Amendment of
          the  United  States  Constitution  prohibited
          enactment  of the proposed law by initiative.
          Following   oral  argument  on   the   issue,
          Superior Court Judge Mark Rindner ruled  that
          the   constitutionality  of  the   initiative
          should not be considered unless and until the
          voters   enact  the  initiative   into   law;
          accordingly,  he  held  that  the  Lieutenant
          Governor  erred  by denying certification  of
          initiative  and  ordered him to  certify  the
          initiative.  Pursuant to the superior  courts
          order,  the initiative was certified; it  was
          subsequently  placed on the  ballot  for  the
          November 2004 statewide general election.
               On  June 5, 2004 House Bill (H.B.)  414,
          An  Act relating to filling a vacancy in  the
          office  of United States senator, and to  the
          definition of political party; and  providing
          for  an effective date was enacted into  law.
          On  June  15,  2004  the Lieutenant  Governor
          removed  the initiative from the  ballot  and
          the  state  moved to dismiss this  appeal  as
          moot  on  the grounds that H.B. 414  and  the
          initiative were substantially the  same,  and
          that  the initiative was therefore void under
          article   XI,   section  4  of   the   Alaska
          Constitution.   Trust  the  People  filed   a
          separate  case  in superior court  seeking  a
          declaratory   judgment  that   the   proposed
          initiative  must  be placed on  the  November
          ballot.   On July 8, 2004 we issued an  order
          in  which  we  informed the parties  that  we
          would   consider  the  issue  of  substantial
          sameness when we considered the merits appeal
          involving the Seventeenth Amendment from  the
          first  superior court action.  Oral  argument
          was held before this court on July 21, 2004.
          It is Ordered:
               1.    The  law  enacted to supplant  the
          initiative (HB 414) is not substantially  the
          same   as  the  initiative  because  (1)   it
          provides that the governor will fill a senate
          vacancy    by   appointment,   whereas    the
          initiative  provides that all vacancies  will
          be   filled  by  popular  election,  and  (2)
          eliminating  gubernatorial appointments  from
          the process of filling senate vacancies is  a
          primary    objective   of   the   initiative.
          Therefore,  the initiative is not  void,  and
          the  states motion to dismiss this appeal  as
          moot is DENIED.
               2.     Judge  Rindner  did  not  err  in
          declining  to consider whether the initiative
          violates the Seventeenth Amendment unless and
          until  it  is approved by the voters  and  in
          ruling    that   the   lieutenant    governor
          wrongfully   denied  certification   of   the
          initiative.  The general rule is that a court
          should not determine the constitutionality of
          an initiative unless and until it is enacted.
          There  are  two exceptions to  this.   First,
          where  the  initiative is challenged  on  the
          basis  that it does not comply with the state
          constitutional   and   statutory   provisions
          regulating initiatives, courts are  empowered
          to   conduct  pre-election  review.   Second,
          courts  are  also empowered to  conduct  pre-
          election  review  of  initiatives  where  the
          initiative  is  clearly  unconstitutional  or
          clearly  unlawful.  Neither exception applies
          to  this case.  The first exception does  not
          apply because the present challenge does  not
          involve  state  constitutional and  statutory
          provisions   regulating   initiatives.    The
          second  exception does not apply because  the
          initiative  is  not clearly unconstitutional:
          whether the Seventeenth Amendment permits  or
          precludes   lawmaking  by   initiative   with
          respect  to filling senate vacancies presents
          an  open  and fairly debatable constitutional
          question.   The  decision  of  the   superior
          court, deferring review of the initiative and
          directing the lieutenant governor to  certify
          the initiative, is AFFIRMED.
               3.    The  initiative  entitled  An  Act
          Relating  to Filling a Vacancy in the  Office
          of  United States Senator (03-SENV) shall  be
          placed on the ballot.
               4.   An opinion will follow.
          
     2     Alaska Const., art. XI,  1.  There are certain subject
matter  limitations  on the peoples power to  enact  initiatives.
Initiatives shall not be used to dedicate revenue, make or repeal
appropriations, create courts, define the jurisdiction of  courts
or  prescribe their rules, or enact local or special legislation.
Alaska  Const., art. XI,  7.  The proposed initiative now  before
the court does not implicate any of these limitations.

     3    Alaska Const., art. XI,  2.

     4     See Ch. 4,  1, SLA 2002.  This statute was amended  on
June 5, 2004 by H.B. 414.  See Ch. 50, SLA 2004.

     5    See AS 15.40.140-.220.

     6    Section 1. AS 15.40.140 is amended to read:
          Sec.   15.40.140.   Condition  and  time   of
          calling  special election.   When  a  vacancy
          occurs in the office of United States senator
          or United States representative, the governor
          shall,   by  proclamation,  call  a   special
          election  to be held on a date not less  than
          60, nor more than 90, days after the date the
          vacancy  occurs.   However,  if  the  vacancy
          occurs  on a date that is less than  60  days
          before  or  is on or after the  date  of  the
          primary election in the general election year
          during  which a candidate to fill the  office
          is  regularly elected, the governor  may  not
          call a special election.
          Section 2.  AS 15.40 is amended by a adding a
          new section to read:
          Sec. 15.40.165.  Term of elected senator.  At
          the special election, a United States senator
          shall be elected to fill the remainder of the
          unexpired  term.   The person  elected  shall
          take  office  on the date the  United  States
          Senate   meets,   convenes,   or   reconvenes
          following the certification of the results of
          the special election by the director.
          Section 3.  AS 15.40.200 is amended to read:
          Sec.   15.40  200.   Requirements  of   party
          petition.   Petitions for the  nomination  of
          candidates  of political parties shall  state
          in  substance  that  the  party  desires  and
          intends  to  support the named candidate  for
          the office of United States senator or United
          States representative, as appropriate, at the
          special  election and requests that the  name
          of  the candidate nominated be placed on  the
          ballot.
          Section 4.  AS 15.40.220 is amended to read:
          Sec.   15.40.220.   General  provisions   for
          conduct   of   special   election.     Unless
          specifically    provided    otherwise,    all
          provisions  regarding  the  conduct  of   the
          general election shall govern the conduct  of
          the  special  election of the  United  States
          senator   or  United  States  representative,
          including    provisions   concerning    voter
          qualifications;  provisions   regarding   the
          duties,  powers, rights, and  obligations  of
          the  director,  of other election  officials,
          and     municipalities;     provision     for
          notification  of the election; provision  for
          payment   of  election  expenses;  provisions
          regarding  employees being allowed time  from
          work  to  vote; provisions for the  counting,
          reviewing,  and  certification  of   returns;
          provisions for the determination of the votes
          and  of  recounts, contests, and appeal;  and
          provision for absentee voting.
          Section 5.  AS 15.40.310 is amended to read:
          Sec.   15.40.310.   General  provisions   for
          conduct   of   special   election.     Unless
          specifically    provided    otherwise,    all
          provisions  regarding  the  conduct  of   the
          general election shall govern the conduct  of
          the  special  election of  the  governor  and
          lieutenant   governor,  including  provisions
          concerning  voter qualifications;  provisions
          regarding  the  duties, powers,  rights,  and
          obligations   of  the  director,   of   other
          election  officials, and  of  municipalities;
          provision  for notification of the  election;
          provision  for payment of election  expenses;
          provisions regarding employees being  allowed
          time  from work to vote; provisions  for  the
          counting,  reviewing,  and  certification  of
          returns; provisions for the determination  of
          the  votes  and  of recounts,  contests,  and
          appeal; and provision for absentee voting.
          Section  6.  AS 15.40.470 is amended to read:
          Sec.   15.40.470.   General   provision   for
          conduct   of   special   election.     Unless
          specifically    provided    otherwise,    all
          provisions  regarding  the  conduct  of   the
          general election shall govern the conduct  of
          the   special  election  of  state  senators,
          including  the  provisions  concerning  voter
          qualifications;  provisions   regarding   the
          duties,  powers, rights, and  obligations  of
          the  director,  of other election  officials,
          and    of   municipalities;   provision   for
          notification  of the election; provision  for
          payment   of  election  expenses;  provisions
          regarding  employees being allowed time  from
          work  to  vote; provisions for the  counting,
          reviewing,  and  certification  of   returns;
          provisions for the determination of the votes
          and  of  recounts, contests, and appeal;  and
          provision for absentee voting.
          Section    7.    AS   15.40.010,   15.40.050,
          15.40.060,  15.40.070, 15.40.075,  15.40.130,
          and [] 15.40.135 are repealed.
          Section  8.  Effective Date.  This Act  takes
          effect January 1, 2005.
          
     7     Article  XII,  section 11 of the  Alaska  Constitution
provides:

          As  used  in this constitution, the terms  by
          law and by the legislature, or variations  of
          these  terms,  are used interchangeably  when
          related  to  the  law-making powers.   Unless
          clearly  inapplicable, the law-making  powers
          assigned  to the legislature may be exercised
          by  the people though the initiative, subject
          to the limitations of Article XI.
          
(Emphasis added.)

     8     71 P.3d 896 (Alaska 2003).  In Mahoney we held that  a
municipal clerk,

          in determining whether an initiative would be
          enforceable  as a matter of law, should  only
          reject  a petition that violates any  of  the
          liberally     construed     statutory      or
          constitutional restrictions on initiatives or
          that  proposes a substantive ordinance  where
          controlling       authority       establishes
          unconstitutionality.
          
Id. at 900.  See infra discussion at Part IV.B.

     9     Trust  the People v. State of Alaska, No. 3AN-03-12217
Ci. (Alaska Super., November 3, 2003).

     10    H.B. 414, 23rd Legis., 2d Sess. (2004).

     11      See   bill  history  for  H.B.  414,  available   at
http://www.legis.state.ak.us/basis (last visited July 27,  2004).
Under  the  Alaska Constitution, when the legislature is  not  in
session, the governor has twenty days to sign or veto a bill,  or
it will become law without his signature.  Alaska Const. art. II,
17.   Because the governor neither signed nor vetoed H.B. 414, it
became law without his signature.

     12    Trust the People v. Leman, No. 3AN-04-08185 Ci.

     13     See State, Dept of Revenue v. Andrade, 23 P.3d 58, 65
(Alaska 2001) (questions of law reviewed de novo).

     14    Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).

     15     See  Bailey v. Alabama, 219 U.S. 219, 239 (1911)  ([A
states]  power  to create presumptions is not a means  of  escape
from [federal] constitutional restrictions.).

     16      The  procedure  for finding an  initiative  void  on
grounds of substantial sameness is codified in AS 15.45.210:

          If  the  lieutenant governor, with the formal
          concurrence   of   the   attorney    general,
          determines  that  an act of  the  legislature
          that   is  substantially  the  same  as   the
          proposed  law was enacted after the  petition
          had  been filed, and before the date  of  the
          election,  the  petition  is  void  and   the
          lieutenant  governor  shall  so  notify   the
          committee.
          
The  lieutenant  governors decision to remove an initiative  from
the  ballot  on  this ground is subject to judicial  review.   AS
15.45.240.

     17    543 P.2d 731 (Alaska 1975).

     18    Id. at 735.

     19    Id. at 736.

     20    Id.

     21    Id. at 735 (quoting Constitution Convention Committees
Proposal No. 3) (emphasis added).

     22    Id. at 736.

     23    Id. at 737.

     24    Id. at 736.

     25    Id.

     26    Id. at 737-38.

     27    Id. at 736.

     28    Id. at 737-39.

     29    Id. at 739.

     30     Id. at 739-40.  As the dissent in Warren pointed out,
of  the 19 separate sections of the initiative, only six are  the
same  as  the statute, and [s]even sections have been  eliminated
entirely by the statute.  Id. at 741 (Erwin, J., dissenting).

     31    See Falcon v. Alaska Pub. Offices Commn, 570 P.2d 469,
472 (Alaska 1977).

     32    Ch. 30,  1, SLA 1998.

     33     Trust  the People argues that the proposed initiative
arose  out  of  voter frustration with this change  in  the  law.
According  to  Trust  the  People,  the  essential  aims  of  the
initiative are to remove the appointment power from the Governor,
in  direct  response  to Governor Murkowskis appointment  of  his
daughter  to  fill his own Senate seat, and to eliminate  totally
the incumbency advantage for appointed Senators never elected  by
the  voters.  The state does not agree with all aspects of  Trust
the  Peoples  factual  claims,  which  it  argues  are  based  on
unsubstantiated opinions.  Our resolution of this case  does  not
require  us to determine whether there is merit to the assertions
of Trust the People.

     34    Falcon, 570 P.2d at 472 n.6.

     35    See supra note 1.

     36    See AS 15.45.180(a).

     37    House Bill 414 provides that the governor need not call
a  special election for U.S. senator where a vacancy occurs  less
than  sixty  days  prior  to the primary election  in  a  general
election year.  Primary elections are generally held in the  last
week of August, and general elections in early November, with the
results  certified in late November or early December,  at  which
point  the  winning candidate is sworn in as senator.  Therefore,
were  a  senatorial vacancy to occur in late June  of  a  general
election  year, the governors appointee would serve  for  roughly
five  months,  or until the end of November.  See  the  State  of
Alaska      Division      of      Elections      website,      at
http://www.gov.state.ak.us/ltgov
/elections/homepage.html#results.

     38     The  Constitutional  Convention  Committees  original
proposal  also  stated  that [n]o law passed  by  initiative  may
be  . . . amended or repealed by the legislature for a period  of
three   years,   but  this  too  was  changed  to   the   present
constitutional language that an initiated law may not be repealed
by  the legislature within two years of its effective date  [but]
may  be  amended  at any time . . . .  Constitutional  Convention
Committee Proposal No. 3, Section 4 (Dec. 9, 1955).

     39    Warren v. Boucher, 543 P.2d 731, 737 (Alaska 1975).

     40    See Alaska Const., art. XI,  6.

     41    Alaska Const., art. XI,  4.

     42    Warren, 543 P.2d at 740 (Erwin, J., dissenting).

     43     Warren  v.  Thomas, 568 P.2d 400, 403  (Alaska  1977)
(considerable  language  changes in  legislatures  amendments  of
popularly-initiated law only served to clarify and render the law
more precise, and thus did not repeal it).

     44    Warren v. Boucher, 543 P.2d at 737.

     45    Id. at 743 (Erwin, J., dissenting).

     46     The  minutes  of the Senate State Affairs  Committees
March  18,  2004  discussion of H.B. 414  indicate  that  Senator
Gretchen Guess proposed an amendment that would have  prevented a
governors   temporary  senate  appointment  from   standing   for
reelection  in  a  subsequent special  election.   Senator  Guess
explained  that she was worried that the temporary appointee  has
an  incumbency advantage, and that this would be at odds with the
intent  of the initiative, which is to make a clean process  that
is separate from an appointment.  The amendment failed.

     47    Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999).

     48     Alaska  Const., art. XI,  7.  These restrictions  are
mirrored in AS 15.45.010.

     49     Alaska  Const., art. XII,  11 (emphasis added).   See
also  Brooks,  971  P.2d  at  1028-29 (describing  constitutional
history of section 11 as indicating that its clearly inapplicable
language meant that initiative process was inapplicable only when
55 idiots would agree that it was inapplicable).

     50    There is an additional basis for pre-election review in
Alaska,  not  argued in the case before us: [G]eneral contentions
that the provisions of an initiative are unconstitutional may  be
considered  pre-election  only . .  .  if  controlling  authority
leaves  no  room  for  argument  about  its  unconstitutionality.
Alaska  Action Ctr., Inc. v. Municipality of Anchorage,  84  P.3d
989, 992 (Alaska 2004) (quoting Kodiak Island Borough v. Mahoney,
71 P.3d 896, 900 (Alaska 2003)) and Brooks, 971 P.2d at 1027.  We
provided  an example of the type of clearly controlling authority
that  might  allow a proposed initiative to be removed  from  the
ballot:  The  initiatives substance must be on  the  order  of  a
proposal  that would mandat[e] local school segregation based  on
race  in violation of Brown v. Bd. of Educ. before the clerk  may
reject  it  on  constitutional grounds.  Alaska Action  Ctr.,  84
P.23d  at  992  (citations omitted).  In  this  case,  the  state
concedes that the provisions of the proposed initiative would  be
perfectly  constitutional and above reproach if  enacted  by  the
legislature.

     51     528 P.2d 456 (Alaska 1974) overruled on other grounds
by McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988).

     52    Boucher, 528 P.2d at 460.

     53     Id.  (citing Walters v. Cease, 394 P.2d  670  (Alaska
1964);  Starr v. Hagglund, 374 P.2d 316 (Alaska 1962))  (emphasis
added).

     54     Id.  (quoting  Bowe v. Secy of the  Commonwealth,  69
N.E.2d 115, 128 (Mass. 1946)).

     55    See, e.g., Brooks, 971 P.2d at 1027 (quoting Boucher);
Alaska  Action  Ctr., 84 P.3d at 992 (quoting  Brookss  quotation
from Boucher); Whitson v. Anchorage, 608 P.2d 759, 761-62 (Alaska
1980).

     56    84 P.3d 989.

     57    Id. at 992.

     58    Id.

     59    Id. at 993.

     60    Id. at 992 (quoting Brooks, 971 P.2d at 1027).

     61     See, e.g., Kodiak Island Borough v. Mahoney, 71  P.3d
896,   900   (Alaska   2003)  (comparing  section   11s   clearly
inapplicable  requirement  to  stringent  test  applicable   when
executive  order declares statute unconstitutional); Brooks,  971
P.2d at 1029 (describing section 11s clear idiot test).

     62    698 P.2d 1173 (Alaska 1985).

     63    Id. at 1175.

     64    Id.

     65    Id. at 1177.

     66    528 P.2d 456, 460 (Alaska 1974).

     67    887 P.2d 960 (Alaska 1994).

     68    Id. at 962 n.6.

     69    71 P.3d 896 (Alaska 2003).

     70    Id. at 897.

     71    Alaskans for Legislative Reform, 887 P.2d at 966.

     72    971 P.2d 1025 (Alaska 1999).

     73    Id. at 1027-29.

     74    Id.

     75    Id. at 1027 (citing Boucher, 528 P.2d at 460).

     76    Id.

     77    Id.

     78    Id. at 1030, 1033.

     79    608 P.2d 759 (Alaska 1980).

     80    Id. at 761.

     81    Id. at 761-62.

     82     84 P.3d 989, 992 (Alaska 2004).  See discussion supra
note 50.

     83     See, e.g., Brooks, 971 P.2d at 1027 (quoting Boucher,
528  P.2d at 460 overruled on other grounds by McAlpine v.  Univ.
of  Alaska, 762 P.2d 81 (Alaska 1988));  Alaska Action  Ctr.,  84
P.3d at 992 (quoting Brookss quotation from Boucher).

     84     Boucher, 528 P.2d at 460.  See also Citizens for Tort
Reform v. McAlpine, 810 P.2d 162, 168-70 (Alaska 1991).