Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kohlhaas v. State, Office of the Lieutenant Governor (1/15/2010) sp-6450

Kohlhaas v. State, Office of the Lieutenant Governor (1/15/2010) sp-6450, 223 P3d 105

     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

SCOTT KOHLHAAS, )
) Supreme Court No. S- 13024
Appellant, )
) Superior Court No. 3AN-07-05750 CI
v. )
) O P I N I O N
STATE OF ALASKA, OFFICE OF )
THE LIEUTENANT GOVERNOR, ) No. 6450 January 15, 2010
)
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Jack W. Smith, Judge.

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

          Before:   Fabe, Chief Justice, Eastaugh,  and
          Winfree,  Justices.  [Matthews, Justice,  and
          Carpeneti, Justice, not participating.]

          FABE, Chief Justice.

I.   INTRODUCTION
          In  2003  Scott  Kohlhaas proposed a ballot  initiative
calling for a statewide vote on whether Alaska should secede from
the  United  States.  The lieutenant governor refused to  certify
Kohlhaass initiative, and the superior court concluded  that  his
refusal  was  proper.   Affirming the judgment  of  the  superior
court,  we  held  that  the  lieutenant  governor  had  correctly
declined to certify Kohlhaass initiative because secession  is  a
clearly unconstitutional end.
          In  2007  Kohlhaas drafted a second initiative on  this
topic,  this  time calling for a statewide vote  on  whether  the
State  should  seek  changes in existing law  and  constitutional
provisions that would authorize Alaskas secession from the United
States.   The  lieutenant governor again declined to certify  the
initiative   for  circulation,  and  the  superior  court   again
concluded  that the lieutenant governors denial of  certification
was  proper,  granting  the States motion for  summary  judgment.
Kohlhaas appeals.
          Kohlhaass  revised  initiative seeks  either  secession
itself  or  a  change  in existing constitutional  law  to  allow
secession.   Because  secession is clearly unconstitutional,  and
because the people of Alaska may not effect constitutional change
through  the initiative process, Kohlhaass revised initiative  is
an  improper subject for the initiative process.  The  lieutenant
governor  correctly denied certification of the  initiative.   We
thus affirm the superior courts judgment.
II.  FACTS AND PROCEEDINGS
     A.   Initiative 03INDP and Kohlhaas I
          In April 2003 Scott Kohlhaas submitted an initiative to
the  Office of the Lieutenant Governor, accompanied by  at  least
one  hundred  qualifying signatures as required by  Alaska  law.1
The initiative, known as 03INDP, read as follows:
          INITIATIVE PETITION:
          
          AN  INITIATIVE REQUIRING THE STATE OF  ALASKA
          TO VOTE ON OBTAINING ALASKAN INDEPENDENCE, IF
          LEGALLY  POSSIBLE,  OR  TO  SEEK  CHANGES  IN
          EXISTING LAW AND CONSTITUTIONAL PROVISIONS TO
          AUTHORIZE, AND THEN OBTAIN, INDEPENDENCE.
          
          Be  it enacted by the people of the State  of
          Alaska:
          
          (1)   At  the next regular general  election,
          the following question shall be presented  to
          the   voters  of  the  State  of  Alaska  for
          approval or rejection:
          
          Shall the State of Alaska obtain independence
          from the United States of America, and become
          an  independent nation, if such  independence
          is legally possible, and if such independence
          is  not  legally possible under present  law,
          shall  the  State of Alaska seek  changes  in
          existing law and Constitutional provisions to
          authorize such independence, and then  obtain
          independence?
          
          (2)    If   this  question  is  not  answered
          affirmatively,  then this question  shall  be
          placed before the voters of Alaska every  ten
          years in the future.
          
          (3)    The   provisions  of  this   Act   are
          independent  and  severable,   and   if   any
          provision  of  this Act, or the applicability
          of   any   provision   to   any   person   or
          circumstance, shall be held to be invalid  by
          a   court  of  competent  jurisdiction,   the
          remainder  of this Act shall not be  affected
          and  shall  be  given effect to  the  fullest
          extent practicable.
          
          The  attorney  generals  office reviewed  the  petition
application for compliance with the statutes that govern  Alaskas
initiative process, AS 15.45.0302 and AS 15.45.040.3  It  advised
then-Lieutenant Governor Loren Leman that the initiative did  not
comply with the constitutional and statutory provisions governing
the use of Alaskas initiative process.  In its recommendation  to
the  lieutenant  governor, the attorney generals  office  advised
that Initiative 03INDP failed because [t]he initiative may not be
used  to propose amendments to the Alaska State Constitution  and
the  law  is  clear that a state may not secede from  the  union.
Based on this recommendation, the lieutenant governor declined to
certify the initiative petition for circulation.4
          Kohlhaas  appealed to the superior court, arguing  that
the  lieutenant  governor was required to certify the  initiative
for   circulation  because  initiatives  that  are  not   clearly
unconstitutional may be judicially reviewed only after enactment.
Superior  Court Judge Sen K. Tan ruled in favor of the  State  on
the  ground  that  secession from the United  States  is  clearly
illegal, and Kohlhaas appealed that decision.
          In Kohlhaas I, we held that (1) the State may refuse to
certify   an   initiative  proposing  ends   that   are   clearly
unconstitutional; (2) secession from the United States is clearly
unconstitutional  and  therefore  an  improper  subject  for  the
initiative,  and  thus the State properly rejected  the  petition
proposing the initiative; and (3) because the initiative had  not
been  circulated,  possible  severance  of  its  unconstitutional
portions would not be considered.5
     B.   Initiative 07AKIN and the Current Case
          On January 29, 2007, Kohlhaas, Lynette Clark, and Linda
Winkelman  filed  an  application with the  lieutenant  governors
office for an initiative petition calling for Alaskans to vote on
seeking changes in existing law and constitutional provisions  to
authorize  secession  from the United States.   This  initiative,
known  as 07AKIN, differed from the prior initiative in  that  it
did   not  expressly  propose  outright  secession   but  instead
proposed  that  the State seek changes in law and  constitutional
provisions to authorize secession.  Its text reads as follows:
          AN  INITIATIVE REQUIRING THE STATE OF  ALASKA
          TO  VOTE  ON SEEKING CHANGES IN EXISTING  LAW
          AND  CONSTITUTIONAL PROVISIONS  TO  AUTHORIZE
          ALASKAN INDEPENDENCE.
          
          BE  IT ENACTED BY THE PEOPLE OF THE STATE  OF
          ALASKA:
          
          (1)    At  the  next  regular  election,  the
          following question shall be presented to  the
          voters of the State of Alaska for approval or
          rejection:
          
          Shall  the  State of Alaska seek  changes  in
          existing law and Constitutional provisions to
          authorize it to obtain independence from  the
          United States of America?
          
          (2)    If   this  question  is  not  answered
          affirmatively when this question is presented
          to  the  voters, then this question shall  be
          placed before the voters of Alaska every  ten
          years thereafter.
          
          (3)    The   provisions  of  this   Act   are
          independent  and  severable,   and   if   any
          provision  of  this Act, or the applicability
          of   any   provision   to   any   person   or
          circumstance, shall be held to be invalid  by
          a   court  of  competent  jurisdiction,   the
          remainder  of this Act shall not be  affected
          and  shall  be  given effect to  the  fullest
          extent practicable.
          
After  receiving the application, then-Lieutenant  Governor  Sean
Parnell   forwarded  the  initiative  petition  to  then-Attorney
General  Talis  Colberg  and requested  review  of  the  petition
application  to determine whether it complies with  AS  15.45.030
and AS 15.45.040.
          In  late  February  2007 the attorney  generals  office
provided  a  memorandum  of  advice to  the  lieutenant  governor
recommending  that he deny certification of the petition  because
it   did   not  comply  with  the  constitutional  and  statutory
provisions  governing  the use of the  initiative  process.   The
memorandum  concluded that [t]he proposed bill  still  calls  for
Alaskas  secession  from  the United  States,  which  is  clearly
unconstitutional,  and  therefore a  prohibited  subject  for  an
initiative, and recommended that the lieutenant governor  decline
to  certify  the  application.  On March 7, 2007, the  lieutenant
governor  notified Kohlhaas that he was denying certification  of
the initiative petition.
          Later  that  month, Kohlhaas filed a complaint  seeking
judicial  review of the lieutenant governors refusal  to  certify
his  initiative petition for circulation.  In mid-April the State
filed  its  answer  and  requested that  Kohlhaass  complaint  be
dismissed with prejudice.  In early September 2007 Kohlhaas filed
a motion for summary judgment. Less than a month later, the State
opposed  Kohlhaass  motion  and filed its  own  cross-motion  for
summary judgment.
          On  January 4, 2008, Superior Court Judge Jack W. Smith
granted  the  States motion for summary judgment and  found  that
Kohlhaass  initiative application propose[d]  a  measure  seeking
secession for Alaska from the union . . . , an objective that  is
clearly   unconstitutional  under  controlling  legal  authority.
Citing  Kohlhaas I, the superior court concluded that [w]here  an
initiative   application  proposes  a  clearly   unconstitutional
measure, or proposes a constitutional amendment, the [l]ieutenant
[g]overnor is empowered to conduct a pre-election review and deny
certification of the initiative application.  Kohlhaas appeals.
III. STANDARD OF REVIEW
          We  review a grant of summary judgment de novo.6   When
the  superior court acts as an intermediate court of appeals,  we
independently review the decision of the administrative agency or
actor.7  To issues of statutory and constitutional interpretation
we  apply our independent judgment, adopting the rule of law that
is  most  persuasive in light of precedent, reason, and  policy.8
As  we  explained  in Kohlhaas I, although we liberally  construe
constitutional  and  statutory  provisions  that  apply  to   the
initiative process, we also have a duty to consider carefully the
initiatives  subject matter, given the constitutional  limits  on
the peoples right to direct legislation.9
IV.  DISCUSSION
          Article  XI,  section  1  of  the  Alaska  Constitution
guarantees Alaskans the right to enact legislation by initiative:
The  people  may  propose and enact laws by the  initiative,  and
approve or reject acts of the legislature by the referendum.  The
right  to  enact legislation by initiative must be  exercised  in
accordance  with  certain  limitations,  however,  and  where   a
proposed  initiative  exceeds those  limitations,  the  State  of
Alaska may refuse certification.
          In  Kohlhaas I, we described two grounds on  which  the
State  may deny certification of an initiative, from which denial
the  sponsors  of  the  initiative may  obtain  judicial  review:
First,  a  petition  may be rejected if it violates  the  subject
matter  restrictions  that  arise  from  the  constitutional  and
statutory  provisions governing initiatives . . .  .   Second,  a
petition  may be rejected if it proposes a substantive  ordinance
where controlling authority establishes its unconstitutionality.10
          In  light of these alternative grounds for rejecting an
initiative,  we do not need to decide whether Kohlhaass  proposed
initiative calls for actual secession or constitutional change to
allow  secession.  If and to the extent the initiative calls  for
secession itself, it is clearly unconstitutional and therefore an
improper  subject  for the initiative process.   If  and  to  the
extent   the   initiative  calls  for  changes  in   the   Alaska
Constitution  to  allow  secession,  it  proposes  constitutional
change  and  is therefore an improper subject for the  initiative
process.
     A.   The State May Refuse To Certify an Initiative Proposing
          Action that Is Clearly Unconstitutional.
          In  Kodiak  Island Borough v. Mahoney, we  gave  as  an
example  of  a  clearly  unconstitutional initiative  that  would
properly be rejected (even if correctly submitted as a procedural
matter)  an initiative proposing an ordinance that would  mandate
local  school  segregation based on race.11  As we  explained,  a
clerks  power  to  reject  a clearly unconstitutional  initiative
proposal is analogous to the authority [of executive agencies] to
abrogate  a  statute  which is clearly unconstitutional  under  a
United States Supreme Court decision dealing with a similar law.12
If  a  proposed initiative seeks a clearly unconstitutional  end,
          the State may deny certification.13
          Kohlhaass first initiative called for a statewide  vote
on whether Alaska should secede from the United States.  Kohlhaas
claimed  his initiative was not clearly unconstitutional  because
neither   the   Alaska  Constitution  nor   the   United   States
Constitution contains provisions expressly prohibiting secession.14
We  rejected  this  argument.15  Citing long-established  federal
constitutional  law  prohibiting  secession,  we  held  that  the
initiative   was  improper  because  it  proposed   the   clearly
unconstitutional end of secession.16
          The   constitutionality  of  secession  was   intensely
debated and . . . unresolved until the end of the Civil War.17  As
President Abraham Lincoln stated in his first inaugural  address,
A disruption of the Federal Union heretofore only menaced, is now
formidably attempted.18  President Lincoln tried to persuade  the
country  to  reject  threats of secession from  southern  states,
arguing that no State, upon its own mere motion, can lawfully get
out  of  the Union,  that resolves and ordinances to that  effect
are  legally  void,19  and  that the Union  of  these  States  is
perpetual.20   While a states ability to secede was an  unsettled
question  before  the  end of the Civil  War,  subsequent  United
States  Supreme Court opinions have concluded that  secession  is
clearly  unconstitutional, and Lincolns  belief  in  a  perpetual
Union  is  reflected in what we have described as a plenitude  of
Supreme  Court  cases  holding as completely  null  the  acts  of
secession by Confederate states.21  In Texas v. White, an opinion
issued just after the Civil War, the United States Supreme  Court
stated:
          The  Constitution,  in  all  its  provisions,
          looks to an indestructible Union, composed of
          indestructible   States.   When,   therefore,
          Texas  became one of the United  States,  she
          entered  into an indissoluble relation.   All
          the  obligations of perpetual union, and  all
          the  guaranties of republican  government  in
          the  Union,  attached at once to  the  State.
          The  act which consummated her admission into
          the  Union was something more than a compact;
          it was the incorporation of a new member into
          the  political body.  And it was final.   The
          union  between Texas and other States was  as
          complete,  as  perpetual, and as indissoluble
          as  the  union  between the original  States.
          There  was  no place for reconsideration,  or
          revocation,  except  through  revolution,  or
          through consent of the States.[22]
          This is the law to which we Alaskans bound ourselves at
the  moment we achieved statehood.  We recognized in Kohlhaas  I:
When  the  forty-nine-star flag was first raised  at  Juneau,  we
Alaskans  committed ourselves to that indestructible  Union,  for
good   or   ill,  in  perpetuity.23  We  concluded  that  because
[s]ecession  is  clearly  unconstitutional24  and  [b]ecause  the
initiative   [sought]   a  clearly  unconstitutional   end,   the
lieutenant governor correctly declined to certify it.25
          Kohlhaass  revised initiative calls for a popular  vote
on whether the State should seek changes in state and federal law
and  the  state  and  federal constitutions to  allow  secession.
Kohlhaas  concedes that, under Kohlhaas I, secession  is  clearly
unconstitutional,  and  therefore  an  improper  subject  for  an
initiative but argues that secession is not the subject  of  this
proposed  initiative.   Instead,  Kohlhaas  argues,  his  revised
initiative  mandates  [the]  perfectly  legal  act  of   changing
existing   law  and  [c]onstitutional  provisions  to   authorize
secession.  Kohlhaas asserts that his revised initiative  is  not
clearly  unconstitutional because [t]he  seeking  of  changes  in
existing law is not unconstitutional.
          The  State  maintains  that  Kohlhaass  new  initiative
nonetheless  continues to propose an unconstitutional  end:   The
differences  in  the text of the two initiative measures  do  not
change  the central core of both measures  secession.  The States
position  mirrors  the advice that was given  to  the  lieutenant
governor  by  the attorney generals office, which counseled  that
despite language changes in the revised initiative, these changes
are  not sufficient to remedy the deficiency in the bill that  we
identified  in  our  review  of the earlier,  similar  initiative
application.  The proposed bill still calls for Alaskas secession
from  the  United States, which is clearly unconstitutional,  and
therefore  a  prohibited subject for the initiative.   The  State
argues  that Kohlhaass tactic of proposing an initiative  measure
for  the people to vote to seek amendment of state statutes,  the
state   constitution,   and   the  federal   constitution   could
potentially  allow a popular vote to seek .  .  .  all  sorts  of
clearly unconstitutional ordinances.  But as we ruled in Kohlhaas
I,  Alaskas  initiative process may not be used to  accomplish  a
clearly unconstitutional end.26
          We  do  not  need  to  decide  this  question.   It  is
sufficient for this portion of the discussion to say that if  and
to  the  extent  Kohlhaass  revised  initiative  seeks  secession
itself,  it is clearly unconstitutional and therefore an improper
subject for the initiative process.27
     B.   The  State  May  Refuse To Certify an  Initiative  that
          Proposes Constitutional Change.
          We  turn  now to whether, even if it does not call  for
clearly unconstitutional action, the revised initiative proffered
by  Kohlhaas proposes constitutional change.  We conclude that it
does.28
          As  provided  in Article XIII, the Alaska  Constitution
may  be  changed only two ways: (1) by constitutional convention,
subject  to  ratification by the people; and (2)  by  a  specific
proposal  that  receives two-thirds vote by  each  house  of  the
legislature,  followed by a majority vote  at  the  next  general
election.29   The  people of Alaska may not  use  the  initiative
process  to propose constitutional amendments.30  As we  held  in
State  v.  Lewis, The Alaska Constitution may not be  amended  by
popular   vote  alone,  without  prior  action  by   either   the
legislature or a constitutional convention.31 Thus, if a proposed
initiative  seeks constitutional change, it violates the  subject
matter  restrictions  on Alaskans right of  initiative,  and  the
          lieutenant governor may deny certification.32
          Kohlhaas argues in favor of the revised initiative that
traditional  avenues for legal, including constitutional,  change
may  be  used  to render even secession legal.  In  reference  to
Texas   v.   White,33   Kohlhaas   specifically   suggests   that
reconsidering  or  revoking  ones  statehood  could  be  achieved
lawfully  through  [t]he  consent of the  States.   But  even  if
Kohlhaas is correct in arguing that our state constitution  could
be  changed to allow secession, the initiative process is not  an
available forum through which to pursue such change.34
          Kohlhaass  revised initiative explicitly directs  state
officials  to  seek  changes in existing . .  .  [c]onstitutional
provisions  that  currently prohibit secession  from  the  United
States  of America.  Thus, the initiative itself recognizes  that
legalizing   secession   would  require   changing   the   Alaska
Constitution.  Moreover, even if the initiative did  not  include
explicit  reference  to  constitutional  provisions  and  instead
directed state officials only to seek change in existing  law  to
permit   secession,   the  initiative  would   still   anticipate
constitutional change.  There is simply no way to accomplish  the
goal   of  Kohlhaass  revised  initiative   to  render  secession
constitutional  without changing the Alaska Constitution.35
          Our  written  constitution was drafted not  only  as  a
framework  for  Alaskas government but also as a  compelling  new
argument  for  statehood itself36 that would  convince  both  the
people  of Alaska and members of the United States Congress  that
Alaska  was  ready to manage its own affairs.37  As  its  Framers
knew, the Alaska Constitution would become operative only if  and
when  Alaska became one of the United States.  Because the Alaska
Constitution is rooted in the relationship between the  State  of
Alaska  and  the United States of America, neither the  political
framework  it  establishes nor the political community  it  names
exists outside of that relationship.
          Activated  by  the formal proclamation of statehood  on
January  3,  1959,  the  Alaska  Constitution  created  a   state
government  that  is  inextricably  tied  to  the  United  States
government.  A dozen articles and more than two dozen sections of
the  Alaska  Constitution  refer to  the  federal  government  or
constitution  of the United States, including the provision  that
bases  voter  qualification on United States  citizenship;38  the
requirement  that officials in the three branches of  government,
including  legislators,39 judges,40 and members of the  executive
branch,41 be United States citizens; provisions relating to state
legislative  apportionment as based on the official reporting  of
the  United  States  Census;42  provisions  relating  to  natural
resources;43 the provision disqualifying from public office anyone
who  advocates,  or  belongs to an organization  that  advocates,
violent  overthrow  of  the United States government;44  and  the
requirement that all state officials take an oath to support  and
defend the United States Constitution.45
          Moreover,  Alaskans  political lives  are  inextricably
tied  to  both  the  government of the State of  Alaska  and  the
government of the United States of America.  Citizens of both, we
share with all Alaska residents the rights and obligations of our
          state collective  and we share with all United States citizens
the  rights  and  obligations of our  federal  union.   In  fact,
fulfilling  the inherent right of [Alaskans] to full  citizenship
as  set  forth  in the Constitution of the United  States  was  a
primary  goal of statehood.46  Altering Alaskas statehood  status
and  relationship with the federal government would  necessarily,
and fundamentally, alter the character of each and every Alaskans
citizenship.
          If   the   people  of  Alaska  wish  to  effect  lawful
constitutional change, they must do so in the modes  outlined  by
the  Alaska  Constitution itself.  As  we  have  long  held,  the
initiative  process is an inappropriate forum  through  which  to
pursue   constitutional  change.   Even  if   Kohlhaass   revised
initiative  does  not seek secession, it proposes  constitutional
change  to permit secession and is therefore an improper  subject
for the initiative process.47
V.   CONCLUSION
          Kohlhaass  revised  initiative seeks  either  secession
itself or a change in the Alaska Constitution to allow secession.
We   have   held  that  secession  from  the  Union  is   clearly
unconstitutional.  We have also held that the Alaska Constitution
may  not  be  amended by initiative.  Therefore,  the  lieutenant
governor  correctly denied the initiatives certification  and  it
was not error for the superior court to dismiss Kohlhaass suit on
summary  judgment  grounds.  For these  reasons,  we  AFFIRM  the
superior courts judgment.
_______________________________
     1     Kohlhaas  v.  State,  Office  of  Lieutenant  Governor
(Kohlhaas  I),  147  P.3d  714,  715-16  (Alaska  2006).   Unless
otherwise  noted,  this  subsection  draws  directly   from   the
statement of facts in Kohlhaas I.

     2    AS 15.45.030 provides:

          The application must include the
          
               (1)  proposed bill;
          
               (2)   printed  name, the signature,  the
          address,  and a numerical identifier  of  not
          fewer  than  100  qualified voters  who  will
          serve  as sponsors; each signature page  must
          include  a  statement that the  sponsors  are
          qualified  voters who signed the  application
          with the proposed bill attached; and
          
               (3)    designation  of   an   initiative
          committee consisting of three of the sponsors
          who   subscribed   to  the  application   and
          represent  all  sponsors and  subscribers  in
          matters  relating  to  the  initiative;   the
          designation  must include the  name,  mailing
          address,  and  signature  of  each  committee
          member.
          
     3    AS 15.45.040 provides:

          The  proposed bill shall be in the  following
          form:
          
               (1)   the bill shall be confined to  one
          subject;
          
               (2)   the  subject of the bill shall  be
          expressed in the title;
          
               (3)   the  enacting clause of  the  bill
          shall be: Be it enacted by the People of  the
          State of Alaska;
          
               (4)   the  bill may not include subjects
          restricted by AS 15.45.010.
          
          AS 15.45.010 provides:

          The   law-making  powers  assigned   to   the
          legislature  may be exercised by  the  people
          through   the   initiative.    However,    an
          initiative  may not be proposed  to  dedicate
          revenue, to make or repeal appropriations, to
          create courts, to define the jurisdiction  of
          courts or prescribe their rules, or to  enact
          local or special legislation.
          
     4     Former AS 15.45.070 provides:  The lieutenant governor
shall  review  the  [initiative]  application  and  shall  either
certify it or notify the initiative committee of the grounds  for
denial.   This statute was amended in 2006 to include a sixty-day
deadline.  Ch.  38,   2, SLA 2006.  AS 15.45.080  provides:   The
lieutenant governor shall deny certification upon determining  in
writing that (1) the proposed bill to be initiated is not in  the
required  form; (2) the application is not substantially  in  the
required  form;  or  (3)  there  is  an  insufficient  number  of
qualified sponsors.

     5    147 P.3d at 717-20.

     6     Alaska Action Ctr., Inc. v. Municipality of Anchorage,
84 P.3d 989, 991 (Alaska 2004).

     7     Kohlhaas I, 147 P.3d at 717 (citing Circle  De  Lumber
Co. v. Humphrey, 130 P.3d 941, 946 (Alaska 2006)).

     8     Alaska  Action  Ctr., 84 P.3d at 991  (alteration  and
internal quotation marks omitted).

     9     147  P.3d  at 717 (citing Brooks v. Wright,  971  P.2d
1025, 1027 (Alaska 1999)).

     10    Id. (internal quotation marks omitted).

     11     71 P.3d 896, 900 n.22 (Alaska 2003) (citing Brown  v.
Bd.  of  Educ.  of Topeka, Kansas, 349 U.S. 294 (1955),  for  the
proposition  that  racial  segregation  in  public   schools   is
unconstitutional)).

     12    Id. at 900 (internal quotation mark omitted).

     13    Kohlhaas I, 147 P.3d at 717.

     14    Id. at 718.

     15    Id.

     16    Id. at 718-20.

     17    Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,  6
n.1 (2004).

     18     Abraham  Lincoln, First Inaugural  Address  (Mar.  4,
1861),  in  Abraham Lincoln: Speeches and Writings  18591865,  at
215, 217 (Don E. Fehrenbacher ed., 1989).

     19    Id. at 218 (emphasis in original).

     20    Id. at 217.

     21     Kohlhaas  I,  147  P.3d at  719.   We  recognized  in
Kohlhaas  I  that  [u]nsurprisingly, the Supreme  Court  has  had
little  occasion since Reconstruction to address the legality  of
secession.   Id.  Thus, in Kohlhaas I, 147 P.3d at 719  n.25,  we
cited  decisions of the United States Supreme Court in  White  v.
Cannon,  73 U.S. (6 Wall.) 443, 450 (1867), which held  that  the
Louisiana  ordinance of secession was an absolute nullity;  White
v.  Hart,  80 U.S. (13 Wall.) 646, 651 (1871), which  ruled  that
[a]t  no time were the rebellious States, including Georgia,  out
of  the  pale of the Union; Taylor v. Thomas, 89 U.S. (22  Wall.)
479, 491 (1874), which invalidated the issuance of treasury notes
following  Mississippis ordinance of secession;  and  Daniels  v.
Tearney, 102 U.S. 415, 418 (1880), which declined to discuss  the
invalidity  of a secession ordinance because the issue  has  been
settled by the arbitrament of arms and the repeated adjudications
of this court.

     22    74 U.S. (7 Wall.) 700, 725-26 (1868).

     23    147 P.3d at 720.

     24    Id.

     25    Id. at 715.

     26    Id. at 717-18.

     27    Id. at 715.

     28     Within the context of this appeal, we do not have  to
reach the question whether any constitutional change proposed  by
the  revised initiative would constitute constitutional amendment
or  revision.   In  Bess  v.  Ulmer,  we  held  that  the  Alaska
Constitution   distinguishes  between  two  distinct   kinds   of
constitutional change:  amendment and revision. 985 P.2d 979, 982-
83  (Alaska 1999) (The Framers of Alaskas Constitution explicitly
contemplated  the  importance  of  the  differentiation   between
amendments and revisions and between their respective  fields  of
application.).  Because we hold that Kohlhaass revised initiative
is  improper  as a ballot measure, we do not have  to  reach  the
issue  whether legal change to allow secession would rise to  the
level  of  a  constitutional revision requiring a  constitutional
convention.

     29    Alaska Const. art. XIII,  1, 4; Starr v. Hagglund, 374
P.2d 316, 317 n.2 (Alaska 1962).

     30    Alaskans for Legislative Reform v. State, 887 P.2d 960,
962  n.1  (Alaska  1994), overruled on other  grounds  by  Kodiak
Island  Borough v. Mahoney, 71 P.3d 896 (Alaska 2003);  State  v.
Lewis,  559 P.2d 630, 639 (Alaska 1977); Starr, 374 P.2d  at  317
n.2.

     31    559 P.2d at 639.

     32     See AS 15.45.080 (The lieutenant governor shall  deny
certification upon determining in writing that (1)  the  proposed
bill to be initiated is not in the required form . . . .).

     33    74 U.S. (7 Wall.) 700 (1868).

     34    In Kohlhaas I, after holding Kohlhaass first initiative
clearly  unconstitutional under federal law, we did not  need  to
resolve  the question whether the initiative improperly  proposed
amending the Alaska Constitution.

     35     Because  we  decide this case on state constitutional
grounds,  we  do  not  have  to  address  the  interplay  between
Kohlhaass revised initiative and the United States Constitution.

     36    Robert B. Atwood, Chairman, Alaska Statehood Committee,
Opening  Session Address to the Alaska Constitutional  Convention
(Nov. 8, 1955).

     37    Ernest Gruening, Former Governor, Territory of Alaska,
Opening  Session Address to the Alaska Constitutional  Convention
(Nov. 9, 1955) (discussing the restrictions, discriminations  and
exclusions  Alaska endured as a territory of the United  States);
Victor  Fischer, Alaskas Constitutional Convention 3, 10,  25-28,
180-84 (1975).

     38    Alaska Const. art. V,  1.

     39      See  Alaska  Const.  art.  II,   2  (requiring   all
legislators to be qualified Alaska voters).

     40     Alaska Const. art. IV,  4 (qualifications for supreme
court justices and superior court judges).

     41     Alaska Const. art. III,  25 (qualifications for heads
of  principal executive departments); Alaska Const. art. III,  26
(qualifications for members of boards and commissions at head  of
principal  departments, regulatory agencies,  and  quasi-judicial
agencies);  see  also Alaska Const. art. III,   2,  7  (requiring
governor and lieutenant governor to be qualified Alaska voters).

     42    Alaska Const. art. VI,  1, 2, 3, 8(b), 10(a); see also
Alaska Const. art. VI,  11 (allowing enforcement by any qualified
Alaska voter).

     43    Alaska Const. art. VIII,  6, 9, 11, 14.

     44    Alaska Const. art. XII,  4.

     45    Alaska Const. art. XII,  5.

     46      William   Egan,  President,  Alaska   Constitutional
Convention,  Closing Session Address to the Alaska Constitutional
Convention  (Feb.  5, 1956) (We love our great United  States  of
America,  and  our hearts belong too, to our great  Territory  of
Alaska  and we will never have a true peace of mind until we  are
taken  in  full  membership as one of the  great  states  of  the
Union.);  see  also Ernest Gruening, supra note 37  (We  Alaskans
believe   passionately   that American citizenship  is  the  most
precious  possession in the world.  Hence  we  want  it  in  full
measure;  full  citizenship  instead of  half-citizenship;  first
class  instead  of second class citizenship.  We demand  equality
with all other Americans, and the liberties, long denied us, that
go with it.).

     47     Both  parties  also raised and briefed  the  question
whether Kohlhaass revised initiative proposes a law or is  merely
an   advisory  measure.   Because  Kohlhaass  revised  initiative
implicates our larger prohibition on constitutional amendment  by
initiative, we do not have to decide this question.

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC