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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Ketchikan Gateway Borough (1/8/2016) sp-7075

State v. Ketchikan Gateway Borough (1/8/2016) sp-7075

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                                     

          corrections@akcourts.us.  



                      THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



STATE  OF  ALASKA,  MICHAEL                                       )
  

HANLEY,  COMMISSIONER  OF                                         )     Supreme  Court  Nos.  S-15811/15841
  

ALASKA  DEPARTMENT  OF                                            )
  

EDUCATION  AND  EARLY                                             )     Superior  Court  No.    1KE-14-00016  CI
  

DEVELOPMENT,  in  his  official  capacity,)
  

                                                                  )                        

                                                                        O P I N I O N  

                                                 

                               Appellants and                     )  

                                                                  

                                                                                                           

                               Cross-Appellees,                   )    No. 7075 - January 8, 2016  

                                                                  

                                                                  )  

                                                                  

          v.                                                      )  

                                                                  )  

                                             

KETCHIKAN GATEWAY BOROUGH,  )  

                                                          

AGNES MORAN, an individual, on her                                )  

                                                          

own behalf and on behalf of her son,                              )  

                                                       

JOHN COSS, a minor, JOHN                                          )  

                                                  

HARRINGTON, an individual, and                                    )  

                                      

DAVID SPOKELY, an individual,                                     )  

                                                                  )
  

                                                

                               Appellees and                      )
  

                               Cross-Appellants.                  )
  

                                                                  )  



                                                                                                              

                    Appeal  from the  Superior Court of the  State of Alaska,
  

                                                                                                    

                    First Judicial District, Ketchikan, William B. Carey, Judge.
  



                                                                                                       

                    Appearances:  Kathryn  R.  Vogel,  Rebecca  Hattan,  and  

                                                                                               

                    Margaret   Paton-Walsh,   Assistant   Attorneys   General,  

                                                                                

                    Anchorage,  and  Craig  W.  Richards,  Attorney  General,  

                                                                                                        

                    Juneau,   for Appellants/Cross-Appellees.   Louisiana W.  

                                                                                                    

                     Cutler  and  Jennifer  M.  Coughlin,  K&L  Gates,  LLP,  

                                                                                                    

                    Anchorage,  for  Appellees/Cross-Appellants,  and  Scott  

                                                                                             

                    Brandt-Erichsen, Ketchikan Gateway Borough, Ketchikan,  

                           

                     for     Appellee/Cross-Appellant                     Ketchikan           Gateway  


----------------------- Page 2-----------------------

                                                                                               

                    Borough.         William  D.  Falsey  and  John  Sedor,  Sedor,  

                                                                                      

                    Wendlandt, Evans & Filippi, LLC and Saul R. Friedman,  

                                                                                                

                    Jermain, Dunnagan & Owens, P.C., Anchorage, for Amici  

                                                                                              

                    Curiae  Association  of  Alaska  School  Boards,  Alaska  

                                                                                            

                    Council         of     School        Administrators             and       Alaska  

                                                                                           

                    Superintendents            Association.            Howard         S.    Trickey,  

                                                                                               

                    Matthew Singer and Robert Misulich, Holland & Knight  

                                                                                                    

                    LLP,  Anchorage,  for  Amicus  Curiae  Citizens  for  the  

                                                                                                   

                    Educational  Advancement  of  Alaska's  Children.                             Kim  

                                                                                                     

                    Dunn, Landye Bennett Blumstein LLP, Anchorage, for  

                                                                                            

                    Amicus Curiae NEA-Alaska.  A. Rene Broker, Borough  

                                                                                                 

                    Attorney, Fairbanks, for Amicus Curiae Fairbanks North  

                            

                    Star Borough.  



                                                                                                    

                    Before:  Stowers,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                          

                    Bolger, Justices. [Fabe, Justice, not participating.]  



                                     

                    BOLGER, Justice.
  

                                                                                                 

                    STOWERS, Chief Justice, and WINFREE, Justice, concurring.
  



I.        INTRODUCTION  



                                                                                                                              

                    The State's local school funding formula requires a local government to  



                                                                                                                           

make a contribution to fund its local school district.  The superior court held that this  



                                                                                                                                  

required local contribution is an unconstitutional dedication of a "state tax or license."  



                                                                                                                         

But the minutes of the constitutional convention and the historical context of those  



                                                                                                                         

proceedings suggest that the delegates intended that local communities and the State  



                                                                                                                     

would share responsibility for their local schools.  And those proceedings also indicate  



                                                                                                                       

that the delegates did not intend for state-local cooperative programs like the school  



                                                                                                                      

funding  formula  to  be  included  in  the  term  "state  tax  or  license."                              These  factors  



                                                                                                               

distinguish this case from previous cases where we found that state funding mechanisms  



                                                              -2-                                                        7075
  


----------------------- Page 3-----------------------

violated the dedicated funds clause. We therefore hold that the existing funding formula                                                                     



 does not violate the constitution, and we reverse the superior court's grant of summary                                                                  



judgment.  



II.           FACTS AND PROCEEDINGS         



              A.           School Funding Formula             



                           Article   VII,   section   1   of   the   Alaska   Constitution   requires   the   state  



 legislature to "establish and maintain a system of public schools" open to all children in                                                                              



                  1  

the state.                                                                                                                                                        

                      To fulfill this constitutional mandate, the legislature has defined three types  



                                                                                                                                                           

 of  school  districts  according  to  where  the  district  is  located:                                                          city  school  districts,  

                                                                                                                                    2  "[E]ach organized  

borough school districts, and regional education attendance areas. 

borough is a borough school district";3   a borough must "establish[], maintain[], and  

                                                                                                                                                                     

 operate[] a system of public schools on  an areawide basis."4                                                                    Local school boards  

                                                                                                                                                               



manage and control these school districts under authority delegated by AS 14.12.020.  

                                                                                                                                                                              



 This statute requires local borough and city governments to raise money "from local  

                                                                                                                                                                   

 sources to maintain and operate" their local schools.5  

                                                                                         



              1            Alaska  Const.  art.  VII,    1  ("The  legislature  shall  by  general  law  establish  



 and   maintain   a   system   of   public   schools   open   to   all   children   of   the   State,   and   may  

provide  for  other  public  educational  institutions.").   



              2            AS 14.12.010.  City school districts are those located within a home-rule  

                                                                                                                       

 area or city but outside an organized borough.  Id .  Borough school districts are those  

                                                                                                                                                                  

 located  in  organized boroughs.   Id .   Regional  education  attendance  areas  are  those  

                                                                                                                                                                 

 located outside organized city, home-rule, or borough boundaries.  Id .  

                                                                                                                                              



              3            AS  14.12.010(2).  

                                   



              4            AS 29.35.160(a).  

                                   



              5            AS 14.12.020(c) ("The borough assembly for a borough school district, and  

                                                                                                                                                                      

the city council for a city school district, shall provide the money that must be raised  

                                                                                                                                                                 

                                                                                                                                                  (continued...)  



                                                                                    -3-                                                                           7075
  


----------------------- Page 4-----------------------

                          The local school funding formula begins with the concept of "basic need."                                                                        



This concept is intended to equalize districts by providing them with needed resources,                                                               

                                                                                                 6    A statutory formula determines a  

taking into account differences among districts.                                                                                                                       



district's  basic  need  based  on  two  variables:                                             the  district's  adjusted  average  daily  

                                                                                                                                                               

membership and the statewide base student allocation.7                                                        The district's adjusted average  

                                                                                                                                                           



daily membership accounts for several metrics such as enrollment, school size, relative  

                                                                                                                                                           



costs in the district, the number of students with special needs, and the number of  

                                                                                                                                                                     

correspondence students.8   The base student allocation is a per-student allowance set by  

                                                                                                                                                                     

a statute that the legislature periodically revisits.9  

                                                                                



(...continued)  

                                                                                                                                                     

from local sources to maintain and operate the district.").  By contrast, the legislature  

                                                                                                                                                             

funds districts located in the regional educational attendance areas, which lack taxing  

                                                                                                                                                                   

authority. Id . ("The legislature shall provide the state money necessary to maintain and  

                                                                                                                                                              

operate the regional educational attendance areas."); see Alaska Const. art. X,  2 ("The  

                                                                                                                                                  

State may delegate taxing powers to organized boroughs and cities only."); Matanuska- 

                                                                                                                                                                   

Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 399-400 (Alaska 1997) (stating that  

                                                                                                                                                         

taxing power explains, in part, why the legislature treats districts differently).  



             6            ALASKA  DEP 'T   OF   EDUC.   & E                              ARLY   DEV., A               LASKA'S   PUBLIC   SCHOOL  



FUNDING FORMULA: A REPORT TO THE ALASKA STATE LEGISLATURE  8 (2001).                                                                                         

                                                                                                             



             7            AS   14.17.410(b)(1).  



             8            AS   14.17.410(b)(1)(A)-(D);  AS   14.17.420(a).  



             9            AS   14.17.470;  see  e.g.,  ch.  9,     8-10,  SLA  2008  (setting  the  amount  at  



$5,480  for  2008,  $5,580  for  2009,  and  $5,680  for  2010);  ch.  41,    7,  SLA  2006  (setting  

the   amount   at   $5,380   for  2006).  As   of  November  2015,  the  per-student   allowance   is  

$5,830.   AS   14.17.470.  



                                                                                  -4-                                                                           7075
  


----------------------- Page 5-----------------------

                    To   fulfill   this   basic   need,   districts   receive   "state   aid,   a   required   local  



                                                                       10  

contribution,   and   eligible   federal   impact   aid."                                                            

                                                                            State  aid  comes  from the  "public  

                                                                                                11  The amount of state  

                                                                                                                          

                                                                                   

education fund," to which the legislature allocates funds annually. 



aid that a district receives is based on three variables:  the district's "basic need," the  

                                                                                                                            

district's required local contribution (if any), and the district's federal impact aid.12                                    If  

                                                                                                                              



state appropriations fall short of the amount of state aid calculated under AS 14.17.410,  

                                                                                                                 

then the State must reduce each district's basic need on a pro rata basis.13  

                                                                                                   



                    The required local contribution offsets the amount of state aid provided to  

                                                                                                                              

satisfy  a  district's  basic  need.14              Satisfying  the  local  contribution  requires  a  local  

                                                                                                                         



community to contribute an amount that falls within a statutory range that reflects the  

                                                                                                                            

value of taxable real and personal property located within the district.15  At minimum the  

                                                                                                                            



contribution must equal the "equivalent of a 2.65 mill tax levy on the full and true value  

                                                                                                                         



of the taxable real and personal property in the district as of January 1 of the second  

                                                                                                                      

                                  16   The State, however, cannot require an organized borough or  

preceding fiscal year."                                                                                                       

                          



          10        AS   14.17.410(b).   



          11        See  AS   14.17.300.  



          12        AS   14.17.410(b)(1).  



          13        AS   14.17.400(b).  



          14        See  AS   14.17.410(b)(1)  ("[S]tate  aid  equals  basic  need  minus  a  required  



local  contribution  and  90  percent  of  eligible  federal  impact  aid  for  that  fiscal  year.").   



          15        AS   14.17.410(b)(2).   The  local  contribution  includes  "appropriations  and  



the  value  of  in-kind  services  made  by  a  district."   AS   14.17.990(6).   



          16        AS  14.17.410(b)(2).   A  mill  rate  is  "a  tax  applied  to  real  property  whereby  



each  mill  represents  $1of tax assessment per $1,000 of the  property's assessed  value."   

BLACK 'S  LAW  DICTIONARY   1084  (10th  ed.  2014).  



                                                              -5-                                                        7075
  


----------------------- Page 6-----------------------

city to contribute more than "45 percent of a district's basic need for the preceding fiscal                                          



          17  

year."                                                                                                                                   

              A city or borough school district also may make a voluntary contribution, but  



                                                                                                                

a statutory cap prevents a local community from contributing more than the greater of  



the "equivalent of a two mill tax levy on the full and true value of the taxable real and  



                                                                                                        

personal property in the district" or "23 percent of the total of the district's basic need  

                               18  Thus, under the current framework, organized boroughs and cities  

                                                                                                                                      

for the fiscal year." 



work together with the State to support public schools.  

                                                                                            



           B.         Prior Proceedings  

                                 



                      Ketchikan Gateway Borough is an organized borough that must annually  

                                                                                                                                

contribute to fund its schools under AS 14.12.020.19 

                                                                                                                                         

                                                                                       The required payment, set by the  



                                       20  

                                                                                                                                            

                                           supports the Ketchikan Gateway Borough School District. In  

school funding formula, 



                                                                                                                          

2013,  the  district's  "basic  need"  for  the  upcoming  2014  fiscal  year  was  almost  



                                                                                                                                

$26 million; the required local contribution was about$4.2 million. Though theBorough  



                                                                                                                                       

contributed this amount "under protest," it voluntarily contributed an additional $3.8  



                                                                                                                                    

million. After contributing the funds, the Borough brought suit against the State, asking  



                                                                                                                  

the superior  court, first,  to  declare  the required  local contribution  unconstitutional;  



                                                                                                                                        

second, to enjoin the State from requiring the Borough to comply with the statute; and,  



           17         AS   14.17.410(b)(2).  



           18         AS   14.17.410(c)(1)-(2).   



           19         AS    14.12.020(c)  ("The  borough  assembly  for a  borough  school district    



.   .   .   shall  provide   the   money   that   must  be  raised   from   local   sources to maintain   and  

operate   the   district.").    Ketchikan   Gateway   Borough   incorporated   as   a   second-class  

borough  on  September  13,  1963.   Ketchikan  Gateway  Borough,  Alaska,  Code  01.05.040  

(2015).   



           20         See AS  14.17.410(b)(2) ("[T]he required  local contribution of a city or  

                                                                                                                                           

borough school district is the equivalent of a 2.65 mill tax levy on the full and true value  

                                                                                                                                      

of the taxable real and personal property in the district . . . .").  

                                                                                                 



                                                                     -6-                                                              7075
  


----------------------- Page 7-----------------------

third, to direct the State to refund its protested $4.2 million payment. Both parties moved                                                                                                                                                                                        



for summary judgment.                         



                                              The superior court partially granted the Borough's motion.                                                                                                                                                 It agreed with                    



the Borough that the required local contribution violated the dedicated funds clause                                                                                                                                                                                                



under article IX, section 7 of the state constitution. The dedicated funds clause provides:                                                                                                                                                                               



                                              The proceeds of any state tax or license shall not be dedicated                                                                                                               

                                              to any special purpose, except as provided in section 15 of                                                                                                                                           

                                              this article or when required by the federal government for                                                                                                                                         

                                              state participation in federal programs.                                                                                               This provision shall                                   

                                              not prohibit the continuance of any dedication for special                                                                                                                           

                                              purposes existing upon the date of ratification of this section                                                                                                                       

                                              by the people of Alaska.                                                            [21]  



Thesuperior court concluded that therequired local contributionconstitutedtheproceeds  

                                                                                                                                                                                                                                                                            



of a state tax or license; that the local contribution statute earmarked those funds for a  

                                  



specific purpose and prevented the legislature from using the funds in any other manner;  

                                                                                                                                                                                                                                                                              



and  that  the  required  local  contribution  was  not  exempt  from  the  constitutional  

                                                                                                                                                                                                                                                         



prohibition against dedicated funds.  

                                                                                                                              



                                              The superior  court denied  summary  judgment on  the Borough's other  

                                                                                                                                                                                                                                                                                       



claims.  It concluded that the local contribution did not violate the appropriations or  

                                                                                                                                                                                                                                                                                                  



governor's veto clauses and that equity did not require the State to refund the local  

                                                                                                                                                                                                                                                                                        



contribution to the Borough for the 2014 fiscal year.  

                                                                                                                                                                                        



                                              The appropriations clause under  article IX,  section  13  provides:                                                                                                                                                                          "No  

                                                                                                                                                                                                                                                                                         



money shall be withdrawn from the treasury except in accordance with appropriations  

                                                                                                                                                                                    



made by law.   No obligation for the payment of money shall be incurred except as  

                                                                                                                                                                                                                                                                                                  



authorized by law.  Unobligated appropriations outstanding at the end of the period of  

                                                                                                                                                                                                                                                                                                   



                       21  

                                                                                                                              

                                              Alaska Const. art. IX,  7.  



                                                                                                                                                -7-                                                                                                                                                     7075  


----------------------- Page 8-----------------------

                                                                       22  

time specified by law shall be void."                                       And the governor's veto clause under article II,                                         



section 15 provides:                      "The governor may veto bills passed by the legislature.                                                       He may,   



by veto, strike or reduce items in appropriation bills.                                                    He shall return any vetoed bill,                       

                                                                                                                  23    The court concluded that  

with a statement of his objections, to the house of origin."                                                                                                      



neither clause was violated because the required local contribution "does not enter the  

                                                                                                                                                                    



state treasury" and because the required local contribution is not an appropriation.  The  

                                                                                                                                                                  



court further concluded that it was unproblematic that the required local contribution  

                                                                                                                                                  



never entered the state treasury. In denying the Borough's request for a refund, the court  

                                                                                                                                                                



explained that the State was not unjustly enriched because the required local contribution  

                                                                                                                                                  



did not benefit the State.  

                                                  



                          The State appealed and the Borough cross-appealed, together asking us to  

                                                                                                                                                                      



consider all four prongs of the superior court's decision:  whether the required local  

                                                                                                                                                                



contribution is unconstitutional under the dedicated funds, appropriations, or governor's  

                                                                                                                                                     



veto clauses and,  if so, whether  equity  requires  refunding  the Borough's protested  

                                                                                                                                                       



                  24  

payment.                



             22           Alaska  Const.  art.  IX,     13.   



             23           Alaska  Const.  art.  II,     15.   



             24           Six   amici   also   filed  briefs.    The   Fairbanks North Star   Borough   filed   in  



support  of  the  Borough.   Five  amici  filed in support  of  the   State:   the  Citizens  for  the  

Educational  Advancement  of  Alaska's  Children  and  the  NEA-Alaska  each  filed  a  brief;  

and   the   Association    of   Alaska    School   Boards,   the   Alaska    Council    of    School  

Administrators,   and   the   Alaska   Superintendents   Association   filed   a  joint   brief.    The  

Association  of  Alaska  School  Boards  is  "the  organization  and  representative  agency  of  

the   members   of   the   school   boards   of   the   state."     The   Alaska   Council   of   School  

Administrators  describes  itself  as  an  umbrella  organization  for  "four  of  Alaska's  premier  

educational leadership organizations," including the Alaska Superintendents Association.   

The  Citizens  for  the  Educational  Advancement  of  Alaska's  Children  describes  itself  as  

                                                                                                                                               (continued...)  



                                                                                  -8-                                                                           7075
  


----------------------- Page 9-----------------------

III.       STANDARD OF REVIEW              



                                                                                                                            25  

                       "We review a grant or denial of summary judgment de novo."                                               Questions  



                                                                                                                                      

of constitutional and statutory interpretation, including the constitutionality of a statute,  



                                                                                                             26  

                                                                                                                  We adopt the "rule       

are questions of law to which we apply our independent judgment. 



                                                                                                                         27  

                                                                                                                               

of law that is most persuasive in light of precedent, reason, and policy."                                                    Legislative  



                                                                                                                                             

history and the historical context, including events preceding ratification, help define the  



           24          (...continued)  



                                                                                                                                             

a coalition of 23 member school districts and educators, founded in 1998 to "address the  

                                                                                                                                         

problem of aged and deteriorated schools in rural Alaska." NEA-Alaska describes itself  

                                                                                           

as a "statewide labor organziation of 13,000 certified educators and education support  

                                                                                      

professionals serving in Alaska's public schools."  



           25         State v. Schmidt, 323 P.3d 647, 654 (Alaska 2014) (quoting Alaska Civil  

                                                                                                                             

Liberties Union v. State, 122 P.3d 781, 785 (Alaska 2005)).  

                                                                                         



           26         Id . at 655.  

                                 



           27         Se. Alaska Conservation Council v. State, 202 P.3d 1162, 1167 (Alaska  

                                                                                                                                    

2009) (quoting Premera Blue Cross v. State, Dep't of Commerce, Cmty.& Econ. Dev.,  

                                                                                                                                         

Div. of Ins., 171 P.3d 1110, 1115 (Alaska 2007)).  

                                                                        



                                                                      -9-                                                               7075
  


----------------------- Page 10-----------------------

                            28  

constitution.                     Statutes passed immediately after statehood give insight into what the                                                                                



                                         29  

founders intended.                                                                                                                                                                       

                                               We presume statutes to be constitutional; the party challenging the  



                                                                                                       30  

                                                                                 

statute bears the burden of showing otherwise. 



IV.	           DISCUSSION  



                                                                                                                                                                                 

               A.	            The School Funding Formula Does Not Violate The Dedicated Funds  

                              Clause.  



                                                                                                                                                                                 

                              Before Alaska became a state in 1959, the Territory and local areas shared  



               28             See State v. Alex                  , 646 P.2d 203, 208 (Alaska 1982) ("[T]he sense in which                                                         



 'tax' is used in article IX, section 7 of the [Alaska] [C]onstitution must be determined                                                                             

from its context, both in the text and according to the discussions at the constitutional                                                                

convention which adopted the wording.");                                                       Hootch v. Alaska State-Operated Sch. Sys.                                                      ,  

536   P.2d   793,  800  (Alaska   1975)   ("[A]n   historical   perspective   is   essential   to   an  

enlightened contemporaryinterpretation                                                   ofour constitution.");                          id.at      804 (explainingthat                 

the   events   preceding   ratification  supported   the   court's   interpretation   of   the   state  

constitution).   



               29             See         Bradner                v.      Hammond,                     553          P.2d          1,       4      n.4        (Alaska               1976)  

                                                                                                                                                                               

("Contemporaneous  interpretation  of  fundamental  law  by  those  participating  in  its  

                                                                                                                                                    

drafting has traditionally been viewed as especially weighty evidence of the framers'  

                                                                                                                                                                            

intent."); cf. J.W. Hampton, Jr., &Co. v. United States, 276 U.S. 394, 412 (1928) (citing  

                                                                                                                                                                                 

Myers v. United States, 272 U.S. 52, 175 (1926)) ("This Court has repeatedly laid down  

                                                                                                                                                                                   

the principle that a contemporaneous legislative exposition of the [U.S.] Constitution  

                                                                                                                                                                    

when the founders of our government and framers of our Constitution were actively  

                                                                                                                                                                              

participating in public affairs long acquiesced in fixes the construction to be given its  

                                                                                                                                                                                          

provisions.").  



               30             Se. Alaska Conservation Council, 202 P.3d at 1167.  

                                                                                                                                    



                                                                                           -10-	                                                                                    7075
  


----------------------- Page 11-----------------------

                                                                                          31  

responsibility for funding public education.                                                   The legislature derived the current school                              



funding formula fromthis pre-statehood program, the framework of which has remained                                                                              

largely unchanged.                      32  



                                                                                                                                                                                

                            The Borough contends that the school funding program is a "state tax or  



                                                                                                                                                    

license" that is subject to the dedicated funds clause because it is not a "dedication . . .  

                                                                                                                                     33 and because no other  

                                                                                                                                                                          

existing upon the date of ratification of [the Alaska Constitution]" 



exemption from the dedicated funds clause applies.  Accordingly it concludes that the  

                                                                                                                                                                              



required local contribution violates the dedicated funds clause. First the Borough claims  

                                                                                                                                                                       



that before statehood, "municipalities exercised independent judgment and discretion as  

                                                                                                                                                                                 



to what they could afford to pay for schools" and notes that "cities were not required to  

                                                                                                                                                                                 



provide any particular amount to the school districts."  Second the Borough argues that  

                                                                                                                                                                             



the refund amount that cities received from the Territory "depended on how much was  

                                                                                                                                                                             



appropriated by the Legislature for such purpose."  

                                                                                                            



                            However, as we explain below, the required local contribution is the most  

                                                                                                                                                                           



recent  iteration  of  a  longstanding  state-local  cooperative  program  in  which  local  

                                                                                                                                                                         



communities and the State share responsibility for funding Alaska's public schools.  

                                                                                                                                                                                      



Accordingly, whether or not it is a dedication that predated statehood, the required local  

                                                                                                                                                                           



contribution is not a "state tax or license" within the meaning of the dedicated funds  

                                                                                                                                                                         



clause.  



              31            See   37-3-31 to -33, 37-3-41, 37-3-62 Alaska Compiled Laws Annotated                                                            



(ACLA) (1949). For                          example, section 37-3-62 of the Compiled Laws of Alaska required  

the Territory to refund local districts for part of the cost of maintaining local schools.                                                                       



              32            See AS 14.17.410;  37-3-31 to -33, 37-3-41, 37-3-62 ACLA.  

                                                                                                                                                 



              33            Alaska Const. art IX,  7.  

                                                                             



                                                                                      -11-                                                                                7075
  


----------------------- Page 12-----------------------

                            1.	          Under the Alaska Compiled Laws of 1949, the Territory and                                                                         

                                         local  communities    shared    responsibility    for    funding    local  

                                          schools.  



                            Boroughs did not exist before Alaska became a state.                                                             Under the Alaska        



Compiled Laws of 1949, each city constituted a single school district and each had an                                                             



                                                                                          34  

obligation to provide public school services.                                                                                                                              

                                                                                               An incorporated city also could join with  



                                                                                                                  35  

                                                                                                                                                                      

adjacent areas to form an independent school district.                                                                  Local school boards, which  



                                                                                                                                                                         

oversaw local school activities, had the power to assess, levy, and collect taxes to assist  



                                                                                           36  

                                                                           

with this obligation to support their schools.                                                                                                                                 

                                                                                                 Though territorial law did not dictate an  



                                                                                                                                                                  

exact funding amount, it required cities to provide "suitable school houses . . . and . . .  



                                                                                                                   37  

                                                                                                                                                          

the necessary funds to maintain [local] public schools"                                                                 or, if part of an independent  



                                                                                                                                                     38  

                                                                                                                                                                       

school district, to set aside funding for their share of local school costs.                                                                               Like today,  



                                                                                                                                                                  

local  communities  enjoyed  discretion  in  determining  how  to  satisfy  their  funding  



                                                                                                                                                                       

obligation.   They could dedicate a special school tax to the purpose, or they could  



              34            See   37-3-32 ACLA ("Every city shall constitute a school district and it   



shall be the duty of the [city] council to provide the [school district] with . . . the                                                                                  

necessary funds to maintain public schools . . . .").                                                     



              35	          Id .  37-3-41.  

                                                          



              36           Id .  37-3-24 to -26, 37-3-32, 37-3-53; see also id.  37-3-33 (establishing  

                                                                                                                                                          

                                                                                                                                                                       

authorized expenditures by the school board).  These boards possessed the same power  

                                                                                                

                                                                                                                                                                                     

                                                                                                                                          

to tax as the then-existing municipal corporations and incorporated cities. Id .  37-3-25.  



              37           Id .  37-3-32.      



              38  

                                                          

                           Id .  37-3-53.  



                                                                                     -12-	                                                                               7075
  


----------------------- Page 13-----------------------

                                                                                                                  39  

dedicate a portion of the general municipal tax to the purpose.                                                        Territorial law also   



required   school   boards   to   annually   submit   to   the   Territory   a   budget   of   anticipated  



                                                                                                                                  40  

expenses, a record of all funds collected, and receipts for their expenses.                                                            



                                                                                                                                                      

                        Local  communities  also  received  support  for  local  schools  from  the  



                                                                                                                                                

Territory.  Territorial law provided for the legislature to refund a portion of local school  

                                                     41    The  amount  local communities received  reflected  a  

                                                                                                                                                          

expenses from time to  time. 



statutory formula that considered factors like the number of students in the district, the  

                                                                                                                                                       



total amount the district spent to  maintain  its  school  system,  and the expenses the  

                                                                                                                                                      

Territory had approved in the district's budget.42                                         Thus before Alaska became a state,  

                                                                                                                                                  



local communities and the Territory together supported local schools, much like today.  

                                                                                                                                                 



            39          Id .  37-3-35;           see  AS 14.17.990(6) (defining "local contribution").                



            40  

                                                               

                         37-3-55, 37-3-63 ACLA.  



            41  

                                                                                                                                              

                        Id .  37-3-61 to -62.  Alaska Compiled Laws of 1949 section 37-3-61  

                   

provided:  



                                                                                                                              

                        Such  per  centum  of  the  total  amount  expended  for  the  

                                                                                                                      

                        maintenance of public elementary schools and high schools,  

                                                                                                             

                        within the limits of any incorporated city or incorporated  

                                                                                                                            

                        school district . . . as the Legislature may from time to time  

                                                                                                                           

                        direct,   shall   be   refunded   to   the   school   fund   of   said  

                                                                                                                               

                        incorporated city or incorporated school district . . . from the  

                                                                           

                        moneys of the Territory . . . .  



                                                                                                                                             

This  refund  from  the  Territory  reflects  the  current  state-local  cooperative  funding  

                                                                                                  

program.  See AS 14.17.410 (public school funding).  



            42          See  37-3-61 to -64 ACLA. School districts with more students received                                             

                                                                

                                                                                                                                             

proportionally less than school districts with fewer students.                                                  Id .  37-3-62.             Refunds  

                                                                                                                                                   

were not available for certain expenses, including the cost of levying and collecting taxes  

                                                                                                                                                      

and conducting board elections.  Id .  37-3-64.  In reviewing a district's budget, the  

                                                                                                                                                        

Territory  had  the  authority  to  "disapprove  or  reduce  any  items  in  the  budget"  in  

                                                                                                         

                                                

calculating the amount of reimbursement.  Id .  37-3-63.  



                                                                          -13-                                                                     7075
  


----------------------- Page 14-----------------------

                                2.	             The framers drafted the constitution to allow such state-local                                                                       

                                                cooperative programs to continue after statehood.                                                     



                                The delegates at the constitutional convention recognized the benefits of                                                                                                  



                                                                                              43  

such state-local cooperative programs.                                                                                                                                                                    

                                                                                                     But they also recognized the importance of  



                                                                                                         44  

                                                                                                                                                                                                          

preserving state control over state revenue.                                                                     Through the dedicated funds clause of  



                                                                                                                                                               45  

                                                                                                                                                                                                         

article IX, section 7, the delegates sought to balance such concerns.                                                                                                Early drafts of the  



                                                                                                                                                                                               

clause generally prohibited the dedication of state revenue while allowing for certain  



                43              See, e.g.           , 4 Proceedings of the Alaska Constitutional Convention (PACC)                                                                                                



2651 (Jan. 19, 1956) (statement of Delegate Londborg) (explaining that state-local                                                                                                    

cooperativeprograms                                  wouldencouragelocalcommunities to                                                          organizeintoboroughs,                                   the  

new form of local governance).               



                44               1975 F          ORMAL  OP. A                    TT'Y  GEN. Opinion 9, at 3 (May 2, 1975); 3 A                                                                  LASKA  



 STATEHOOD  COMM'N, C                                     ONSTITUTIONAL  STUDIES   pt. IX, at 27-30 (1955); 4 PACC 2414                                                                             

(Jan. 17, 1956).       



                45              See, e.g., 4 PACC 2413-16 (Jan. 17, 1956).  The delegates, for example,  

                                                                                                                                                                                          

rejected an amendment to the dedicated funds clause proposed by Delegate Buckalew  

                                                                                                                                                                 

that would have deleted a sentence in the clause that allowed for existing dedications to  

                                                                                                                                                                                                           

continue.   Id . at 2416.   Delegate Buckalew had expressed concern that "the [only]  

                                                                                                                                                                                                

sensible sound way to run a state is to abolish this practice [of earmarking funds] which  

                                                                                                                                                                                                 

leads to evils as far as the fiscal management of the state is concerned."  Id . at 2413.  

                                                                                                                                                                                                                  

Delegate  Peratrovich,  who  participated  in  the  committee  that  drafted  the  clause,  

                                                                                                                                                                                              

responded that the committee sought to strike a compromise:  

                                                                                                                  



                                 [Y]ou have to compromise. . . . [I]t was dangerous to give  

                                                                                                                                                                     

                                free rein to the new state in earmarking funds.  However, I  

                                                                                                                                                                              

                                realize . . . that there was some good being accomplished by  

                                                                                                                                                                          

                                those earmarked funds that we have on the books today and  

                                                                                                                                                                       

                                I feel that I cannot support [Buckalew's amendment] on that  

                                                                                                                                                                       

                                condition.  



Id . at 2414.  

              



                                                                                                   -14-	                                                                                            7075
  


----------------------- Page 15-----------------------

exceptions.   The delegates recognized, for example, that dedications should be allowed                                                                                                



when required to participate in federal programs and when such dedications preexisted                                                                                            



statehood.   One such draft provided:                                                  



                               All tax revenues shall be deposited in a general fund to be                                                                          

                               established and maintained by the state.                                                     This provision shall               

                               not prohibit the continuance of any special fund for special                                                               

                               purposes existing at the effective date of the constitution.                                                                         [46]  



A subsequent draft modified the first sentence:  "All revenues shall be deposited in the  

                                                                                                                                                                                                  



State treasury without allocation for special purposes, except where state participation  

                                                                                                                                                

in  Federal  programs  will  thereby  be  denied,"47                                                                   and  preserved  the  exemption  for  

                                                                                                                                                                                                 

allocations in existence at the time of statehood.48  

                                                                                        

                               But the delegates feared that this draft language might prohibit too much.49  

                                                                                                                                                                                                           



Accordingly they modified the clause in two key respects.   First, they reworded the  

                                                                                                                                                                                                 



clause by replacing "[a]ll revenues" with "proceeds of any state tax or license." Second,  

                                                                                                                                                                                       



they revised the last sentence by replacing "any special fund" with "any dedication":  

                                                                                                                                                                                                       



                               The  proceeds  of  any  state  tax  or  license   shall  not  be  

                                                                                                                                                                   

                               dedicated  to  any  special  purpose,  except  as  provided  in  

                                                                                                                                                                    

                               section 15 of this article or when required by the federal  

                                                                                                                                                         

                               government for state participation in federal programs.  This  

                                                                                                                                                                

                               provision shall notprohibitthecontinuanceof anydedication  

                                                                                                                                                  



               46              FORMAL  OP. A                      TT'Y  GEN.,  supra  note 44, at 3 (quoting the draft) (internal                                                    



quotation marks omitted).                                     



               47              Id . at 4 (quoting the draft) (internal quotation marks omitted).  

                                                                                                                                                         



               48              Id . at 8 ("This provision shall not prohibit the continuance of any allocation  

                                                                                                                                                                                   

existing upon the date of ratification of this Constitution by the people of Alaska."  

                                                                                                                                                                                    

(quoting the draft) (internal quotation marks omitted)).  

                                                                                                                                 



               49              See id. at 5; 3 PACC 2302 (Jan. 16, 1956) (statement of Delegate Nerland).  

                                                                                                                                                                                   



                                                                                -15-                                                                                                         7075
  


----------------------- Page 16-----------------------

                               for special purposes existing upon the date of ratification of                                             

                               this section by the people of Alaska.                                                [50]  



Through suchrevisions, thedelegates recognized that anyprohibitionon dedicated funds  

                                                                                                                                                                                             

required reasonable limits.  A flat prohibition was neither feasible nor desirable.51                                                                                                           The  

                                                                                                                                                                                                



dedicated funds clause could not be "strict[ly] interpret[ed]" because both legal and  

                                                                                                                                                                                                



contractual obligations would "require a segregation of certain moneys," including:  

                                                                                                                                                                           



                               pension contributions, proceeds from bond issues, sinking  

                                                                                                                                                         

                               fund receipts,  revolving fund  receipts,  contributions from  

                                                                                                                                                              

                               local government units for state-local cooperative programs,  

                                                                                                                                                   

                               and tax receipts which the state might collect on behalf of  

                                                                                                                                                                     

                               local government units.[52]  

                                                                         



Delegate  White  explained  that  the  amended  language  allowed  these  exceptions  to  

                                                                                                                                                                                                   



continue:  "By going to the tax itself and saying that the tax shall not be earmarked, we  

                                                                                                                                                                                                  

eliminated [the need to make explicit] all seven of those exceptions."53  

                                                                                                                                                                        



                               The colloquy  among  the delegates reflects this deliberate compromise  

                                                                                                                                                                           



embodied by the clause. Just as the delegates voiced the need for State control over state  

                                                                                                                                                                                               



revenue, the delegates lauded the clause for preserving certain programs, including those  

                                                                                                                                                                                             



                50             Alaska Const. art. IX,  7 (emphasis added).                                          



                51  

                                         

                               See           PUB.             ADMIN.                  SERV.,               COMMENTS                         FROM              PUBLIC                 SERVICE  

ADMINISTRATION ON FINANCE COMMITTEE PROPOSAL 1(Jan. 4, 1955);                                                                                                     see also           FORMAL  

                                                                                                                                 

OP. A         TT'Y  GEN.,  supra  note 44, at 7 (quoting P                                                    UB. A        DMIN. S           ERV.,  supra, at 1).                        



                52             PUB.A           DMIN.S           ERV., supra  note 51, at 1 (emphasis added);                                                      see also           FORMAL  



OP. A         TT'Y  GEN.,  supra  note 44, at 7 (quoting Pub. Admin. Serv.,                                                                             supra, at 1).                  



                53             4 PACC 2363 (Jan. 17, 1956) (statement of Delegate White);                                                                                            see also   



FORMAL  OP. A                      TT'Y  GEN. ,    supra  note 44, at 7 (quoting P                                                 UB. A        DMIN. S           ERV.,  supra  note  

52, at 1);            Se. Alaska Conservation Council v. State                                                        , 202 P.3d 1162, 1169 n.29 (Alaska                               

2009) (noting the exceptions).                                          Both the Borough and the State appear to agree that the                                                                   

delegates   amended   the   clause   to   avoid   interfering   with   programs   such   as   pension  

contributions and state-local cooperative programs.                                                                      



                                                                                                -16-                                                                                         7075
  


----------------------- Page 17-----------------------

                                                                               54  

for "highways,                  airports,and schools."                              Through this               compromise, thedelegates                                allowed  



dedications "now on the statute books [to] be left in effect as long as the legislature saw                                                                                     

                                                   55  and, as Delegate White noted, the delegates allowed setting  

fit to leave them there,"                                                                                                                                                 



aside certain monies pursuant to statute, including those for state-local cooperative  

                                                                                                                                                               



                      56  

programs.                  



                             The delegates recognized  that an arrangement of shared  responsibility  

                                                                                                                                                           



between the State and local communities offered substantial benefits, particularly in the  

                                                                                                                                                                                  



transition to the borough system of local governance.   Active participation in local  

                                                                                                                                                                             



governance  promised  to  save  the  State  "hundreds  of  thousands  of  dollars  of  the  

                                                                                                                                                                                 

taxpayers' money."57                             Cooperative programs, like those in which the State and local  

                                                                                                                                                                    



communities   shared   the   cost   of   providing   local   public   services,   encouraged  

                                                                                                                                                             



unincorporated areas to incorporate by reassuring them that they would "definitely  

                                                                                                                                                                                          

benefit by organizing . . . [to] get[] into the picture of local government."58                                                                                       Existing  

                                                                                                                                                                      



cost-sharing  programs  between  the  Territory  and  local  communities,  like  that  in  

                                                                                                                                                                                   



education, combined with increased local control over education and other services  

                                                                                                                                                                       

offered such incentives.59  

                                                         



              54            FORMAL  OP. A                   TT'Y  GEN.,  supra  note 44, at 12-13.                                        



              55            4 PACC 2415 (Jan. 17, 1956) (statement of Delegate Nerland);                                                                         see also id           .  



at 2369-70 (statement of Delegate Peratrovich).                                                         



              56            See id. at 2363 (statement of Delegate White) (explaining that the seven  

                                                                                                                                                                            

former exceptions were now implicit in the amended clause); FORMAL  OP. A                                                                                        TT'Y  GEN.,  

                                                                                                                                  

                                                                                                                                                                                          

supra note 44, at 7 (identifying the seven exceptions to which Delegate White referred).  



              57            4 PACC 2652 (statement of Delegate Londborg).  

                                                                                                              



              58            Id. at 2651 (statement of Delegate Londborg).  

                                                                                                       



              59            See id        .;  id. at 2650 (statement of Delegate V. Rivers) (noting the example                                                        



                                                                                                                                                            (continued...)  



                                                                                        -17-                                                                                 7075
  


----------------------- Page 18-----------------------

                            Before statehood, responsibility for local governance largely fell to cities.                                                                             



 The state constitution revised this system by creating boroughs with the potential to hold                                                                                



more power and more responsibility:             



                            The entire State shall be divided into boroughs, organized or                                                            

                            unorganized.     They   shall   be   established   in   a   manner   and  

                            according to standards provided by law. . . .                                              The legislature   

                            shall   classify   boroughs   and   prescribe   their   powers   and  

                            functions.[60]  



 Through the borough system, the delegates sought to avoid the redundancy, confusion,  

                                                                                                                                                               

 and unnecessary costs of overlapping county-city systems elsewhere in the nation.61  

                                                                                                                                                                                      

 Given such concerns they decided not to grant school districts taxing power.62                                                                                      Instead  

                                                                                                                                                                     

the  delegates  made  local  schools  dependent  on  boroughs  for  money.63                                                                                  While  the  

                                                                                                                                                                             



 delegates entrusted the State with "establish[ing] and maintain[ing] a system of public  

                                                                                                                 



              59            (...continued)  



                                                                                                                                                                        

 of existing inducements to organize like refunds of taxes "a percentage, at least, of which  

                                                               

reverts back to the organized area").  



              60            Alaska Const. art. X,  3.  

                                                                             



              61            See, e.g., 4 PACC 2630 (Jan. 19, 1956) (statement of Delegate V. Fischer)  

                                                                                                                                                                    

 ("Once you get started on [granting taxing authority], each separate function could well  

                                                                                                                                                                            

justify an independent tax levying authority and then you are right back to the type of  

                                                                                                                                                                                

 government that we are trying to avoid in Alaska, the overlapping of independent taxing  

                                                                                                                                                                        

jurisdictions.");  id. at 2632 (statement of Delegate Doogan) ("The thing that is wrong  

                                                                                                                                                                       

with that fiscal autonomy [giving local school boards taxing authority] is that . . . if they  

                                                                                                                                                                            

were not careful they could break any municipality within a school district.").  

                                                                                                                                              



              62            See Alaska Const. art. X,  2 ("The State may delegate taxing powers to  

                                                                                                                                                                                

 organized boroughs and cities only.").  

                                                                                  



              63            See Alaska Const. art. X,  2; 4 PACC 2632 (Jan. 19, 1956) (statement of  

                                                                                                                                                                                

Delegate Doogan)  ("Consequently, with the [borough] assembly having more than the  

                                                                                                                                                                              

 one function of having schools, having many other functions and so many tax dollars,  

                                                                                                                                                                     

then would be able to distribute the funds as equitably as possible.").  

                                                                                                                         



                                                                                      -18-                                                                                7075
  


----------------------- Page 19-----------------------

                                                                     64  

schools open to all children of the State,"                              they anticipated that boroughs likely would                    



                                                                     65  

have to levy a tax to provide for schools.                                



                       The delegates recognized that the transition to the borough system would  

                                                                                                                                        

                 66   In allocating power and responsibility under the Alaska Constitution, the  

take time.                                                                                                                                   

         



delegates sought to provide the State with room to grow and to adapt. They designed the  

                                                                                                                                             



           64          Alaska Const. art. VII,  1.               



           65          4  PACC 2652  (Jan.  19,  1956)  (statement  of  Delegate  Doogan)  ("The  

                                                                                                                                        

borough, of necessity, . . . to provide for its operation would probably have a certain  

                                                                                                                                       

basic tax to provide schools . . . ."); see also id. at 2648 (statement of Delegate Doogan)  

                                                                                                                                    

("The [S]tate would of necessity provide certain basic functions. . . . [T]he [S]tate then  

                                                                                                                                           

could very easily delegate whatever it wanted to do to the borough . . . ."); Matanuska  

                                                                                                                                

Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 399 (Alaska 1997) (highlighting the  

                                                                                                                                             

legislature's authority to delegate such responsibility while still retaining control over  

                                                                                                                                           

education).  



           66          4 PACC 2650 (Jan. 19, 1956).  As Delegate Victor Rivers explained:  

                                                                                                                                             



                       We thought that at the state level it would be the policy as it  

                                                                                                                          

                       has been in the past to offer certain inducements to them to  

                                                                                                                         

                       organize.   Now, at the present time in incorporated cities  

                                                                                                                   

                       there are certain refunds of taxes in the nature of license  

                                                                                                                

                       taxes, liquor taxes, and other taxes that are a percentage, at  

                                                                                                                         

                       least, of which reverts back to the organized area.   In the  

                                                                                                                       

                       extent that the benefits the legislature sets up will offset the  

                                                                                                                       

                       added cost to the people, . . . but it was our thought there  

                                                                                                                   

                       would  be  enough  inducement  for  them  to  organize  and  

                                                                                                                     

                       exercise  home  rule  so  that  as  time  went  on  they  would  

                                                                                                                 

                       gradually all become incorporated boroughs. . . . The thought  

                                                                                                               

                       was that inducements to organize would be offered on the  

                                                                                                                       

                       basis of the granting of home rule powers plus certain other  

                                                                                                       

                       inducements that would make it advantageous to them to be  

                                                                                                                        

                       boroughs, as we now have that same program of inducement  

                                                                                                         

                       to organize communities.  

                                           



Id . (emphases added).  

                         



                                                                      -19-                                                               7075
  


----------------------- Page 20-----------------------

                                                                                                                                                                                               67  

constitution to be flexible so that the legislature could fill in the "exact details [later]."                                                                                                       



                                                                                                                                                                                            

Though the delegates sought to limit certain powers and to avoid certain pitfalls, they did  



                                                                                                                                                                                   

not intend to compel the State to unravel existing programs nor did they intend to prevent  



                                                                                                                              

the State from experimenting and adapting to changing circumstances.  



                                                                                                                                                                               

                              3.	            Early legislationbuiltuponthepre-statehoodlaws that required  

                                                                                                                                                                                            

                                             the Territory and local communities to share responsibility for  

                                                          

                                             local schools.  



                                                                                                                                                                    

                              Early  post-statehood  legislation  filled  in  the gaps of the constitutional  



                                                                                                                                                                      

framework.  In 1961 the legislature enacted incorporation standards for boroughs, as  



                                                                                                                                                                            

required under article X, section 3 of the Alaska Constitution, and delegated significant  



                                                   68                                                                    69 

responsibility to them.                                                                                                                     

                                                        As the delegates envisioned,                                          those responsibilities included  



                                                                                                                                            70  

                                                                                                                                                 

the State's constitutional obligation to provide public schools. 



               67             Id . at 2647 (statement of Delegate Rosswog) (noting that the delegates                                                                         



sought to develop a "flexible" framework on which the legislature could build and fill                                                                  

in the "exact details . . . by law");                                     see also id             . at 2654 (statement of Delegate V. Fischer)                                   

("[A]t the same time we visualize the possibility that as the borough becomes a more                                                                                                  

definite unit of government over the years" it will assume those functions that it could                                                                                          

"best . . . carr[y] out.").                            



               68	            See Alaska Const. art. X,  3.  

                                                                                           



               69             See  4 PACC 2629 (Jan. 19, 1956)  (statement of Delegate V. Fischer)  

                                                                                                                                                                                

(explaining boroughs' responsibility for schools); id. at 2652 (statement of Delegate  

                                                                                                                                                                               

Doogan) (noting that boroughs likely would have to levy taxes to support schools); see  

                                                                                                                                                                                            

also  Bradner  v.  Hammond,  553  P.2d  1,  4  n.4  (Alaska  1976)  ("Contemporaneous  

                                                                                                                                                    

interpretation of fundamental law by those participating in its drafting has traditionally  

                                                                                                                                                                        

been viewed as especially weighty evidence of the framers' intent.").  

                                                                                                                                                               



               70             See Alaska Const. art. VII,  1.  

                                                                                               



                                                                                             -20-	                                                                                      7075
  


----------------------- Page 21-----------------------

                       The 1961 act charged boroughs with "establish[ing], maintain[ing], and                                                     



                                                                                                           71  

operat[ing] a system of public schools on an areawide basis."                                                                           

                                                                                                               To fulfill this mandate,  



                                                                                                                                                  

boroughs were given responsibilities like those of cities.  State laws that governed city  



                                                                               

school districts now also governed borough school districts, including those related to  

                                                                                                                       72   These financial  

                                                                                                                                         

"financial support . . . and other general laws relating to schools." 



support laws and other general school laws were largely the same as those in place pre- 

                                                                                                                                                 

statehood.73   As in the Territory, local communities, including boroughs, were required  

                                                                                                                                          

to support local schools.74  

                                                



                       In a 1962 act, the legislature began to adapt the pre-statehood cooperative  

                                                                                                                                    



program for  providing  school services to  the borough  system of governance.                                                                  The  

                                                                                                                                                 



legislature  clarified  that  "[e]ach  organized  borough  constitutes  a  borough  school  

                                                                                                                                            

               75   Like the Territory, the State continued to oversee local school operations,  

district."                                                                                                                           

budgeting, and spending,76 and it shared responsibility for administering and supervising  

                                                                                                                                    



            71         Ch.   146,    3.33(a),  SLA   1961.   



            72         Id .    3.33(b).   



            73         See,   e.g.,   former AS   14.15.230-.750   (1962).   As   the   legislative  history  



reveals,   many   of   these   laws   remained   unchanged   since   1949.     See,   e.g.,   former  

AS    14.15.230   (1962)   (originally   enacted   as       37-3-31   ACLA   (1949));   former  

AS   14.15.240  (1962)  (originally enacted  as     37-3-32  ACLA);  former  AS   14.15.450  

(1962)   (originally  enacted  as    37-3-54  ACLA).  



            74         Ch. 146,  3.33, SLA 1961.  

                                                                          



            75         Ch. 110,  9, SLA 1962.  

                                                                    



            76         See former AS  14.05.010 (1962) (originally enacted as  37-1-2 ACLA  

                                                                                                                                            

(1949)); AS  14.10.010 (1962) (originally enacted as  37-2-7 ACLA); AS  14.10.300  

                                                                                                                                      

(1962) (originally enacted as  37-2-53 ACLA).  

                                                                       



                                                                        -21-                                                                   7075
  


----------------------- Page 22-----------------------

                                                                                                                 77  

the system of public schools with local school boards.                                                                And the 1962 act began to refine                        



the system, developing the public school foundation account to provide state funding for                                                                                             



public schools on an annual basis and fine-tuning the method for calculating the amount                                                                                    

                                                                                                          78     The State and local communities  

of state aid and the required local contribution.                                                                                                             



continued to support schools together.  

                                                                

                             Statutes enacted soon after statehood generally reflect the framers' intent.79  

                                                                                                                                                                                            



Post-statehood,  as  the  delegates  envisioned,  the  legislature  continued  to  hold  local  

                                                                                                                                                                               



communities responsible for supporting schools under the borough system of local  

                                                                                                                                                                               

governance.  While the State "of necessity provide[d] certain basic functions,"80  it also,  

                                                                                                                                                                                



as  the  delegates  anticipated,  delegated  some  of  its  duties  to  boroughs  with  the  

                                                                                                                                                                                  



understanding  that  boroughs  "would  probably  have  a  certain  basic  tax  to  provide  

                                                                                                                                                                         



                                                                 81  

schools" to borough residents.                                         

                                              



                             4.	           Subsequent  legislation  did  not  alter  the  basic  framework  of  

                                                                                                                                                                                     

                                           state-local cooperation in providing local public schools.  

                                                                                                                                                          



                             In 1966, as the borough system began to gain  traction, the legislature  

                                                                                                                                                                   



divided  school  districts  into  three  categories.                                                       Organized  cities  located  outside  an  

                                                                                                                                                                                    



              77	            Former AS 14.05.100 (1962) (originally enacted as  37-1-12 ACLA).                                                                     



              78  

                                                                                                                                                        

                             Former AS 14.17.010-.040 (1962); see also  former AS 14.15.050-.070  

                                                                                                                                                                             

(1962).  The legislature also recognized that the transition to the borough system would  

                                                                                                                                                                          

take time.   Accordingly, until 1966, the legislature left in place many of the parallel  

                                                                                                                                                                               

territorial laws that required cities to support local schools.  Ch. 98,  61, SLA 1966  

                                

(repealing AS 14.15).  



              79             See Bradner v. Hammond, 553 P.2d 1, 4 n.4 (Alaska 1976); Se. Alaska  

                                                                                                                                                                           

Conservation Council v. State, 202 P.3d 1162, 1172 (Alaska 2009).  

                                                                                                                                    



              80             4 PACC 2648  (Jan. 19, 1956) (statement of Delegate Doogan).  

                                                                                                                                                  



              81            Id . at 2652 (statement of Delegate Doogan).  

                                                                                                        



                                                                                         -22-	                                                                                 7075
  


----------------------- Page 23-----------------------

organized borough were responsible for managing and controlling a city school district;                                                    



organized boroughs wereresponsiblefor thedistrictwithintheir boundaries;and                                                               districts  



                                                                                                                                                     82  

outside organized boroughs and cities were operated (and fully funded) by the State.                                                                      



                                                                                                                                                

As before the State required city and borough districts to help maintain and operate local  



                                                                                                                                                    

schools with money "raised from local sources," and the State agreed to contribute an  



                                                                     83  

                                                      

amount defined by a statutory formula. 



                                                                                                                                                   

                       From1969 to 1970, as the Borough notes, the legislature redefined state aid  



                                                                                                                      84  

                                                                                                                                         

under Chapter 17 of the statute to equal each district's basic need.                                                        And it repealed  



                                                                                                                                        

provisions  mandating  that  local  communities  contribute  to  local  school  funding,  



                                                                                                                                                    

including  AS  14.17.030  (required  local  effort)  and  AS  14.17.130  (computation  of  



                                      85  

                                                                                                                                     

required local effort).                    But the legislature left the state-local cooperation foundation  



                                                                                                                                         

untouched.  As was true in 1961, "[e]ach organized borough constitute[d] a borough  



                                                                                                                                                  

school district" and each organized borough was required to "establish, maintain, and  



                                                                                                     86  

                                                                                          

operate a system of public schools on an areawide basis." 



            82         Former AS 14.12.010, .020 (1966) (original version at ch. 98,  1, SLA                                                   



 1966).  



            83         Former AS 14.12.020(c) (1966) (original version at ch. 98,  1, SLA 1966).  

                                                                                                                                             

The amount of the state contribution depended on factors like the number of schools in  

                                                                                                                                                     

the  district,  the  district's  need  for  special  education  services,  and  the  specific  

                                                                                                                                         

characteristics of the district.  AS 14.17.050-.070 (1966).  

                                                                                         



            84         Ch. 95,  1, SLA 1969 ("The amount of state aid is the basic need.").  

                                                                                                                                   



            85         Ch. 95,  11, SLA 1969.  

                                                         



            86          Compare AS 07.15.330(a) (1970) ("[T]he first and second class borough  

                                                                                                                                          

shall establish, maintain, and operate a system of public schools on an areawide basis."),  

                                                                                                                                          

with ch. 146,  3.33(a), SLA 1961 ("The first and second class borough shall establish,  

                                                                                                                                        

maintain, and operate a system of public schools . . . .").  

                                                                                                    



                                                                        -23-                                                                   7075
  


----------------------- Page 24-----------------------

                                    The next year, in 1970, legislators again explicitly mandated that local                                                                                                               



communities and the State work together to fund local schools. The revised formula for                                                                                                                                           



allocating responsibility between theStateand                                                                              localcommunitiesexperimentedwithnew                                                                

                          87  For example, it determined state aid based on taxable property values within  

variables.                                                                                                                                                                                                              

the district in light of the number of students a district served.88   Previously, the required  

                                                                                                                                                                                                                  



local effort considered only the taxable property within the district; it did not standardize  

                                                                                                                                                                                                          

that value.89  

            



                                    In 1980, as the Borough points out, the legislature again tweaked the school  

                                                                                                                                                                                                                       



funding system.  Rather than separately calculate a district's "state aid" and a district's  

                                                                                                                                                                                                               



                  87                AS14.17.021(c)(5) (1970),                                                asamendedby                             ch. 238,  4, SLA1970 ("[S]tate                              



aid as computed under this section shall constitute at least 90 per cent of the basic need                                                                                                                                 

as defined by the department of each school district.").                                                                                               A district would only receive                                 

state aid if it satisfied its required local funding obligation.                                                                                              AS 14.17.071(a) (1970),                                            as  

amended by                         ch. 238,  4, SLA 1970 ("Payment of state aid to a local school district                                                                                                          

under this chapter is contingent upon matching by the district in the amount of the                                                                                                                                            

required local effort for that district in the ratio of required local effort . . . .").                                                                                                             



                  88                AS  14.17.021(c)(3)  (1970),  as  amended  by  ch.  238,    4,  SLA  1970  

                                                                                                                                                                                                                         

(defining state aid with respect to the "full and true value of taxable real and personal  

                                                                                                                                                                                                                 

property within the district divided by the average daily membership of the district").  

                                                                                                                                                                                                            



                  89                Compare  AS  14.17.021(c)(3)  (1970),  as  amended  by  ch.  238,    4,  

                                                                                                                                                                                                                                 

SLA 1970 (defining state aid with respect to the "full and true value of taxable real and  

                                                                                                                                                                                                                               

personal  property  within  the  district  divided  by  average  daily  membership  of  the  

                                                                                                                                                                                                                               

district"), with AS14.17.030(b) (1963) (defining the required local effort in terms of "the  

                                                                                                                                                                                                                              

full and true value of taxable real and personal property within the district" but not  

                                                                                                                                                                                                                               

referring  to  the  number  of  students  in  the  district).                                                                                                      The  legislature  repealed  

                                                                                                                                                                                                               

AS 14.17.030 in 1969.  Ch. 95,  11, SLA 1969.  The legislature had last amended the  

                                                                                                                                                                                                                                

statute  in  1963.                                  See  former  AS  14.17.030  (1966)  (identifying  the  most  recent  

                                                                                                                                                                                                                      

amendment as session laws of 1963, chapter 70, section 1).  

                                                                                                                                                        



                                                                                                               -24-                                                                                                        7075
  


----------------------- Page 25-----------------------

                                                                                                                                             90  

"basic need," the statute calculated only a district's "basic state aid."                                                                         Through this shift           



in focus, the statute no longer set out to estimate a district's basic need or a district's total                                                                             

                                                                                                                                                    91   But it also did  

budget.   Unlike before, the statute did not consider local contributions.                                                                                                       

                                    92  After all, as before, the State continued to hold boroughs responsible  

not rule them out.                                                                                                                                              

                             



for "establish[ing], maintain[ing], and operat[ing] a system of public schools on an  

                                                                                                                                                                                  

areawide basis."93  

                                          



                             Subsequently  in  1986  the  legislature  again  reformulated  the  state  aid  

                                                                                                                                                                                



calculation.   It reinstated the requirement that local communities contribute to local  

                                                                                                                                                                             

school funding.94                        And the amount of state aid continued to reflect factors like the  

                                                                                                                                                                                



number of schools in the district, the district's need for special education services, and  

                                                                                                                                                                                



              90             Compare   ch. 26,  4, SLA 1980 (reframing AS 14.17.021(a) as "[t]he                                                                          



amount of basic state aid for which each district is eligible" and omitting references to                                                

"basic need"),                 with  ch. 90,  2-3, SLA 1977 (separately defining "state aid" and "basic                                                                 

need").   



              91             Compare ch. 26,  4, SLA 1980 (noting only that the state aid could be  

                                                                                                                                                                                  

reduced in light of federal contributions), with ch. 90,  3, SLA 1977 (mandating that  

                                                                                                                                                                                

state aid constitute "at least 97 per cent of the basic need" of each school district).  

                                                                                                                                                            



              92            AS 14.17.220 (1982) ("This chapter shall not be interpreted as preventing  

                                                                                                                                                                 

a public school district from providing educational services and facilities beyond those  

                                                                                                                                                                            

assured by the foundation program.").  As the annotated statutes reveal, in 1982 this  

                                                                                                                                                                               

section had not been revised since 1962 when the legislature enacted the provision.  Id .  

                                                                                                                                                                                  

(noting only the 1962 enactment under session laws chapter 164, section 1.01).  

                                                                                                                                                                          



              93            AS 29.33.050 (1984) (identifying the most recent amendment as session  

                                                                                                                                                                        

laws of 1975, chapter 13, section 6, and chapter 124, section 34). In 1972, the legislature  

                                                                                                                                                                  

repealed former titles 7 (boroughs) and 29 (municipal corporations) and reenacted the  

                                                                                                                                                                                 

provisions under title 29, including those related to borough duties. Ch. 118, SLA 1972.  

                                                                                                                                                                                         



              94            Ch. 75,  2-3, SLA 1986.  

                                                                          



                                                                                       -25-                                                                                  7075
  


----------------------- Page 26-----------------------

a district's specific characteristics.                                  95  



                                                                                                                                                                 

                            The  legislature  has  continued  to  refine  this  program,  as  the  delegates  



                                                                                                                                                                                 

envisioned it would, but the program's  pre-statehood core has remained intact.  Just as  



                                                                                                                                                                  

theCompiled Laws ofAlaskachargedlocalcommunitieswith "provid[ing]thenecessary  

                                                                                        96  title 14, chapter 17 requires boroughs and  

                                                                                                                                                        

funds to maintain [local] public schools," 

cities to fund schools with money raised from local sources.97                                                                     While the details of this  

                                                                                                                                                                              



state-local cooperative program have changed, the legislature has never relieved local  

                                                                                                                                                                           



communities of their longstanding obligation to support local public schools.  Rather as  

                                                                                                                                                                                 



one delegate stated when explaining the rationale for shifting the onus of education from  

                                                                                                                                                                            



cities to boroughs:  "When you come to the borough though, the borough is interested  

                                                                                

in education.  It will be one of the basic functions which it will be responsible for."98  

                                                                                                                                                                     



              95            See  ch. 75,  2, 5, SLA 1986.                                  Section 2 defined state aid for a district in                                        



light of its "instructional unit allotment," and  5 defined "instructional units" to include                                                                         

some of the above factors.                               Id .  The next year, the legislature refined this longstanding   

cooperative   framework,   creating   new   sections   for   some   of   the   1986   mandates   and  

combining other mandates with existing sections.                                                         See, e.g.          , ch. 91,  3-4,                 SLA 1987   

(recalibrating the formula for state aid and local contributions);                                                                    id.  25 (repealing the                  

former provisions).   



              96             37-3-32 ACLA (1949).  

                                                                  



              97            AS 14.12.020(c) ("The borough assembly for a borough school district . . .  

                                                                                                                                                                                    

shall provide the money that must be raised from local sources to maintain and operate  

                                                                                                                                                                      

the district."); AS 14.17.410(b) ("Public school funding consists of state aid, a required  

                                                                                                                                                                    

local contribution, and eligible federal impact aid . . . .").  The legislature has left the  

                                                                                                                                                                               

AS 14.12.020 mandate untouched since 1975.  See AS 14.12.020.  

                                                                                                                    



              98            4 PACC2629 (Jan.19, 1956) (statement of Delegate V. Fischer). Compare  

                                                                                                                                                                   

AS 14.12.020 (2015), with id. (1975), id. (1966), former AS 07.15.330 (1966), and ch.  

                                                                                                                                                                               

 146,  3.33, SLA 1961.  

                                      



                                                                                      -26-                                                                                 7075
  


----------------------- Page 27-----------------------

                                  5.	             We have yet to consider the dedicated funds clause in light of                                                                                                   

                                                  state-local cooperative programs.                             



                                  The Borough argues that                                       State v. Alex                  and its progeny dictate that the local                                        



 funding formula of AS 14.12.020(c) and 14.17.410(b) violates the dedicated funds                                                                                                                         



 clause.  But  Alex and its progeny do not dictate the result here.  Never before have we  



 considered this type of longstanding state-local cooperative program.                                                                                                          



                                                  a.	              State v. Alex        



                                  We first considered the scope of the dedicated funds clause in                                                                                                     State v.   



             99  

Alex .                                                                                                                                                                                         

                   There, a group of commercial fishers alleged that a statute authorizing mandatory  



                                                                                                                                                                                                 

 assessments on their salmon sales "for the purpose of providing revenue for . . . qualified  



                                                                                                                                                                                      100  

                                                                                                                                                                                                        

regional [aquaculture] association[s]" violated the dedicated funds clause.                                                                                                                   We agreed  



                                                                                                                                                                                                                   

with  the fishers  and accordingly  rejected  the State's argument,  which attempted  to  



                                                                                                                                                                                                                

 distinguish between "general revenue taxes" (subject to the dedicated funds clause) and  



                                                                                                                                                                                  101  

                                                                                                                                                                                          

 "special assessments" for services (allegedly not subject to the clause).                                                                                                                In doing so,  



                                                                                                                                                                                                                           

we adopted a broad meaning of "tax" in light of the origin of the clause's prohibition.  



                                                                                                                                                                                                           

We considered the debates at the Convention; the studies the delegates relied on when  



                                                                                                                                                                                                           

 drafting the section, including those that emphasized importance of protecting State  



                                                                                                                                                                                                                

 control over state revenue; and how the delegates revised the clause,  including the  



                 99               646 P.2d 203 (Alaska 1982).                             



                 100             Id . at 204-05 (Alaska 1982).                           



                 101  

                                                

                                 Id . at 208.  



                                                                                                       -27-	                                                                                                7075
  


----------------------- Page 28-----------------------

change from "all revenues" to the "proceeds of any state tax or license."                                                                   102  In light of       



this context, we held that the clause prohibited dedicating not only taxes but also special                                                               



                                                                              103  

assessments like the one at issue in                                Alex .  



                                                                                    

                          But unlike this case, Alex did not ask us to consider a longstanding state- 



                                                                                                                                                            

local cooperative program.   In Alex , the program at issue was first enacted in 1976,  



                                                                                                                                                                

nearly 20 years after Alaska became a state, and there was no evidence suggesting that  

                                                                                                                                                      104      The  

                                                                                                                                                               

the  program was one  the  delegates  intended  would  fall  outside  the  clause. 



regional aquaculture associations, who would benefit from the assessment, were also  

                                                                                                                                                               

established in 1976, long after Alaska became a state.105  Accordingly in Alex we did not  

                                                                                                                                                                 



consider whether a longstanding state-local cooperative program was a "state tax or  

                                                                                                                                                                  



license" within the meaning of the dedicated funds clause.  

                                                                                                    



                                      b.	          City  of  Fairbanks  v.  Fairbanks  Convention  &  Visitors  

                                                                                                                                                       

                                                   Bureau  



                          In City of Fairbanks, we evaluated the constitutionality of a voter initiative  

                                                                                                                                                      

that restructured how the city allocated bed tax revenues.106   Article XI, section 7 of the  

                                                                                                                                                                 

Alaska Constitution prohibits any initiative that dedicates or appropriates funds,107  and  

                                                                                                                                                                



             102	        Id . at 209-10.     



             103	        Id . at 210.     



             104	         Ch. 190,  1, SLA 1976; ch. 154,  14-16, SLA 1977.  

                                                                                                                          



             105	         Ch. 161,  2, SLA 1976.  

                                                               



             106	         City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d  

                                                                                                                                                              

 1153, 1153-54 (Alaska 1991).  

                                              



             107          Alaska Const. art. XI,  7 ("The initiative shall not be used to dedicate  

                                                                                                                                                      

revenues, make or repeal appropriations . . . .").  

                                                                                     



                                                                               -28-	                                                                         7075
  


----------------------- Page 29-----------------------

the initiative's opponents argued that it did both.                                       108  We held that the initiative did not  



dedicate funds because it actually increased the council's flexibility to make spending     



                  109  

                                                                                                                                                   

decisions.                We relied on Alex  to determine whether the initiative dedicated funds  



                                                                                                                                            

because  it  was  the  only  other  time  we  had  considered  the  meaning  of  dedicated  



                  110  

revenues.              



                                                                                                                                                            

                        But we did not interpret the dedicated funds clause of article IX, section 7  



                                                                                                                                                     

in City of Fairbanks. Article XI (at issue in City of Fairbanks), unlike article IX (at issue  



                                                                                                                                                         111  

                                                                                                                                                                

here and in Alex), defines the scope of the initiative, referendum, and recall process. 



                                                                                                                                                      

By contrast article IX defines the scope of a different set of powers, those related to state  



                                      112  

                                                                                                                                                         

finance and taxation.                       Because City of Fairbanks considered an entirely different set  



                                                                         

of powers, that decision has no bearing here.  



                                                                           

                                     c.         Sonneman v. Hickel  



                                                                                                                                                        

                        Ten years after Alex , we considered the dedicated funds clause for the  



                                                                                                                                                       

second time in Sonneman v. Hickel, where we held unconstitutional in part the act that  



                                                                                              113  

                                                                                                                                                        

created the Alaska Marine Highway System Fund.                                                       The legislature established the  



                                                                                                                                                       

Alaska Marine Highway System Fund as a special account in the general fund and  



                                                                                                                                                          

required the Alaska Marine Highway System, which operates the Alaska ferries, to  



            108          City of Fairbanks               , 818 P.2d at 1155.
         



            109  

                                    

                        Id . at 1158-59.
  



            110         Id . at 1158.
     



            111         Alaska Const. art. XI.
  

                                                           



            112         Alaska Const. art. IX.
            



            113  

                                                                                    

                         836 P.2d 936, 937, 940 (Alaska 1992).
  



                                                                           -29-                                                                     7075
  


----------------------- Page 30-----------------------

                                                                            114  

deposit its gross revenue into that account.                                      Through the act, the legislature sought to                             



create incentives for the Marine Highway System by setting aside some of its revenue   

                           115   Among other provisions, the act outlined how the legislature and the  

for its own use.                                                                                                                                       



Department of Transportation and Public Facilities, which houses the Marine Highway  

                                                                                                                                            



System, could appropriate and could request money from the fund, and it dictated how  

                                                                                                                                                    

the legislature could spend the money therein.116  

                                                                                         



                        We found that such provisions restricted executive authority to request  

                                                                                                                                               

appropriations.117                Accordingly we held that the statute violated the dedicated funds  

                                                                                                                                                  

clause  of  article  IX,  section  7.118                            In  doing  so,  we  recognized  that  a  statute  can  

                                                                                                                                                     



impermissibly dedicate funds in various ways:  A statute could require the legislature to  

                                                                                                                                                         



use funds only for a specified purpose or, as in Sonneman, the statute could preclude  

                                                                                                                                            

agencies from requesting an appropriation for a given purpose.119  

                                                                                                   



                        But  Sonneman  does  not  control  our  decision  here  either.                                                Nothing  in  

                                                                                                                                                        



Sonneman  suggests that the restriction on executive authority over marine highway  

                                                                                                                                            



            114         Id . at 937-38.     



            115  

                                                                                                                                                    

                        Id.  at  938-39  (stating  that  the  act  is  based  on  the  principle  that  "the  

administrators of the Alaska Marine Highway System and the legislature will treat the   

                                                                                                                             

fund as if the Marine Highway System had a right to its proceeds . . . .").  



            116         Id . at 938.  

                                   



            117         Id . at 940.  

                                   



            118         Id .  



            119         Id . ("As the debates make clear, all departments were to be 'in the same  

                                                                                                                                                   

position' as competitors for funds with the need to 'sell their viewpoint along with  

                                                                                                                                        

everyone else.' " (quoting 4 PACC 2364-67 (Jan. 17, 1956))).  

                                                                                                  



                                                                          -30-                                                                     7075
  


----------------------- Page 31-----------------------

revenue existed before statehood.                                               And, unlike the school funding formula at issue here,                                                             



in   Sonneman   we did not consider a state-local cooperative program in which local                                                                                                             



communities and the State share responsibility for providing a local public service.                                                                                               



                                               d.              Myers v. Alaska Housing Finance Corp.                                                



                                Another ten years passed before we again considered the dedicated funds                                                                                         



clause.   In  Myers v. Alaska Housing Finance Corp.                                                                      , we upheld a legislative scheme for                                         



selling anticipated future state revenue from a settlement against tobacco companies so                                                                                                                 

                                                                                                                 120        The  legislature  accomplished  the  

that   it   could   fund   rural   school   improvements.                                                                                                                                            



scheme in three steps: First, the legislature deemed the State's right to future settlement  

                                                                                                                                                                                     

payments to be an asset.121  As with other assets, the State could sell the future settlement  

                                                                                                                                                                                     



payments for a lump sum amount that reflected the present value of the anticipated  

                                                                                                                                                                                  

                                     122  Second, the legislature issued revenue bondssecured by theestimated  

revenuestream.                                                                                                                                                                         

                     

present value of the settlement.123   Finally, the legislature then appropriated a portion of  

                                                                                                                                                                                                        



                                                                                                                                                     124  

the bond proceeds to fund the necessary school improvements.                                                                                                

                                                                                                                  



                                Though the tobacco settlement fell within the scope of the dedicated funds  

                                                                                                                                                                                                



clause and though the scheme dedicated future state revenue, we concluded that the  

                                                                                                                                                                                                     

scheme was constitutional.125                                             We explained that unlike Alex  and Sonneman, which  

                                                                                                                                                                                              



clearly dealt with the allocation of future revenues, the revenue allocation scheme in  

                                                                                                                                                                                                        



                120             68 P.3d 386, 387-88 (Alaska 2003).                                    



                121  

                                              

                               Id . at 388.  



                122            Id .  



                123            Id .  



                124            Id .  



                125  

                                              

                               Id . at 390-91.  



                                                                                                  -31-                                                                                           7075
  


----------------------- Page 32-----------------------

                                           126  

Myers  was different.                            The scheme in                   Myers  reduced future revenue to present value                                        



and used that value to secure bonds, the proceeds of which would be dedicated to fund                                                                                    



                                                                 127  

school improvements that year.                                          



                                         e.            Southeast Alaska Conservation Council v. State  

                                                                                                                                                  



                            Most recently, in Southeast Alaska Conservation Council, we returned to  

                                                                                                                                                                               



the dedicated funds clause when we struck down an act that transferred state land to the  

                                                                                                                                                                             



University of Alaska and then directed that income derived from that land be held in trust  

                                                                                                                                                                          

for the University.128                       Before concluding that the act was unconstitutional, we engaged  

                                                                                                                                                                 



in a two-part inquiry.  First, we concluded that proceeds from the land were within the  

                                                                                                                                                                            

scope of the clause's reference to "proceeds of any state tax or license."129   In doing so,  

                                                                                                                                                                             



we reiterated our warning in Alex that the "constitution prohibits the dedication of any  

                                                                                                                                                                      

                                        130  And we explained that, unlike Myers, the act did not contemplate  

source of revenue."                                                                                                                                       

                     



a non-recurring appropriation, which as in Myers would have been permissible under the  

                                                                                                                                                                             



              131  

clause.              



                            Second,  we  considered  whether  the  University  was  exempt  from  the  

                                                                                                                                                                           



dedicated funds prohibition by virtue of an implied exception under article VII, section 2  

                                                                                                                                                                                



of  the  Alaska  Constitution,  which  authorized  the  University  to  hold  title  to  real  

                                                                                                                                                                          



              126          Id . at 392.
     



              127  

                                        

                           Id . at 389.
  



              128           202 P.3d 1162, 1165-66, 1177 (Alaska 2009).
                                      



              129          Id . at 1169.
  

                                        



              130          Id . (quoting             State v. Alex             , 646 P.2d 203, 210 (Alaska 1982)).
                       



              131  

                                                                                                   

                           Id . at 1170; see Myers, 68 P.3d at 392.
  



                                                                                     -32-                                                                               7075
  


----------------------- Page 33-----------------------

                    132  

property.                  In rejecting this argument, we explained that our case law establishes that                                                                               



University lands are state lands over which the State retains authority regardless of                                                                                                   

                                                                         133  As a result, all revenue fromUniversity land is state  

whether the University holds title.                                                                                                                                                 

revenue subject to the clause.134  

                                                  



                             Southeast Alaska Conservation Council did not rule out the possibility that  

                                                                                                                                                                                      



we might find other statutes exempt from the dedicated funds clause.  Like the other  

                                                                                                                                                                                  



cases in this line, it did not address a longstanding cooperative program, like the school  

                                                                                                                                                                               



funding program, in which local governments and the State share responsibility for  

                                                                                                                                                                                      



providing a local public service.   Such programs do not violate the dedicated funds  

                                                                                                                                                                                 



clause.  

                 



                             Here  we  are  asked  for  the  first  time  whether  local  contributions  to  

                                                                                                                                                                                        



longstanding cooperative programs in which the State and local governments share  

                                                                                                                                                                                 



funding responsibility run afoul of the dedicated funds clause.   The minutes of the  

                                                                                                                                                                                      



constitutional convention and the historical context of those proceedings reveal that the  

                                                                                                                                                                                       



delegates did not intend for required local contributions to such programs to be included  

                                                                                                                                                                           



in the term "state tax or license."  Today's statutory program for funding local public  

                                                                                                                                                                               



schools falls squarely within the type of state-local cooperative programs the delegates  

                                                                                                                                                                         



               132           Se. Alaska Conservation Council                                         , 202 P.3d at 1170-71;                           see  Alaska Const.   



art. VII,  2 ("[The University of Alaska] shall have title to all real and personal property                                                                              

now or hereafter set aside or conveyed to it.                                                          Its property shall be administered and                                        

disposed of according to law.").                        



               133           Se. Alaska Conservation Council, 202 P.3d at 1171.  

                                                                                                                                   



               134           Id . at 1172.  

                                          



                                                                                          -33-                                                                                    7075
  


----------------------- Page 34-----------------------

sought to exempt from the constitutional prohibition on dedicated funds.                                                                                                                          We therefore   



conclude that the existing school funding formula does not violate the dedicated funds                                                                                                                                 



clause.  



                  B.	               TheSchool                      Funding FormulaDoesNotViolateTheAppropriations                                                                                                             Or   

                                    Governor's Veto Clauses.                         



                                    We agree with the superior court that the required local contribution does                                                                                                            



not   violate   the   appropriations   clause   or   the   governor's   veto   clause   of   the   Alaska  



Constitution.    



                                   Article IX, section 13, the appropriations clause, provides:                                                                                                     "No money  



shall be withdrawn from the treasury except in accordance with appropriations made by                                                                                                                                           



law.   No obligation for the payment of money shall be incurred except as authorized by                                                                                                                                         



law.   Unobligated appropriations at the end of the period of time specified by law shall                                                                                                                                 



                        135  

be void."                                                                                                                                                                                                     

                                 Article II, section 15, the governor's veto clause, provides:  "The governor  



                                                                                                                                                                                                                                 

may veto bills passed by the legislature.   He may, by veto, strike or reduce items in  



                                                                                                                                                                                                

appropriation bills.  He shall return any vetoed bill, with a statement of his objections,  



                                                              136  

                                                                       

to the house of origin." 



                                    Like  the  dedicated  funds  clause,  the  appropriations  clause  and  the  

                                                                                                                                                                                                                            



governor's veto clause both address how the State spends state revenue.  Together the  

                                                                                                                                                                                                                              



clauses govern the legislature's and the governor's "joint responsibility . . . to determine  

                                                                                                                                                                                                            

the State's spending priorities on an annual basis."137                                                                                          As with our preceding analysis,  

                                                                                                                                                                                                               



we must interpret these constitutional clauses "according to reason, practicality, and  

                                                                                                                                                                                                                            



                  135              Alaska Const. art. IX,  13.
                                               



                  136              Alaska Const. art. II,  15.
  

                                                                                                            



                  137  

                                                                                                                                                                                                                            

                                   Simpson v. Murkowski, 129 P.3d 435, 447 (Alaska 2006) (quoting the trial
  

court decision).   



                                                                                                              -34-	                                                                                                      7075
  


----------------------- Page 35-----------------------

common sense, taking into account the plain meaning and purpose of the law as well as                                                                               



                                                  138  

the intent of the drafters."                             



                          The Borough argues that the required local contribution is an appropriation  

                                                                                                                                              



that  bypasses  the  constitutionally  mandated  appropriations  process  and  that  the  

                                                                                                                                                                



governor's veto clause requires that the governor be given the opportunity to veto this  

                                                                                                                                                  



appropriation.  If we assume the required local contribution is local money as the State  

                                                                                                                                                              



contends, the required local contribution would not violate either the appropriations  

                                                                                                                                           



clause or the governor's veto clause because these clauses address state money, not local  

                                                                                                                                                               



money.  On the other hand, even if we assume that the local contribution is state money  

                                                                                                                                                           



as the Borough contends, the required local contribution still would not violate either  

                                                                                                                                                             



clause.  The local contribution never enters the state treasury, and it is never subject to  

                                                                                                                                                                    



appropriations  bills.                      The  appropriations  clause,  per  its  plain  language,  applies  to  

                                                                                                                                                                   



withdrawals from the state treasury, and the governor's veto applies to appropriation  

                                                                                                                                             

          139   The required local contribution does not withdraw from the state treasury; and  

bills.                                                                                                                                                           



it is not an appropriation bill.  

                                                          



                          The  Borough  correctly  points  out  that  the  constitutional  delegates  

                                                                                                                                                    



intentionally established a system in which both the legislature and the governor would  

                                                                                                                                                            



consider  how  to  spend  state  money  each  year.                                                But  while  all  three  clauses  - the  

                                                                                                                                                                 



dedicated funds clause, appropriations clause, and governor's veto clause - address  

                                                                                                                                                         



power over the state budget, the plain meaning of each clause reveals three distinct  

                                                                                                                                                         



purposes.  Through the dedicated funds clause, the delegates sought to avoid the evils  

                                                                                                                                                               



of earmarking, which the delegates feared would "curtail[] the exercise of budgetary  

                                                                                                                                                    



             138          West v. State, Bd. of Game                            , 248 P.3d 689, 694 (Alaska 2010) (quoting                



Native Vill. of Elim v. State                        , 990 P.2d 1, 5 (Alaska 1999)).               



             139          See Alaska Const. art. II,  15; Alaska Const. art. IX,  13.  

                                                                                                                                     



                                                                                -35-                                                                          7075
  


----------------------- Page 36-----------------------

                                                                                                                                                  140  

controls and simply [would] amount[] to an abdication of legislative responsibility."                                                                   



                                                                                                                                     

The delegates sought to protect State control over state revenue and to ensure legislative  



                  141  

                                                                                                                                              

flexibility.             By contrast, the appropriations clause defines how the legislature may  



                                                                                                                                           

spend state money after  it has entered state coffers, and the governor's veto clause  



                                                                                                                142  

                                                                                                                                             

provides an executive check on the legislature's spending plan.                                                        Because the plain  



                                                                                                                                             

language of both the appropriations and governor's veto clauses indicates that these  



                                                                                                                                                 

clauses restrict the State's power after money enters the state treasury, not before, the  



                                                                                        

required local contribution does not violate either clause.  



                                                                                                                                     

            C.         The Borough Is Not Entitled To A Refund Of Its Protested Payment.  



                                                                                                                                                 

                       Because we find the required local contribution constitutional, we need not  



                                                                                                                                                 

consider the Borough's request for a refund of its protested payment.  Accordingly, we  



                                                                                           

uphold the superior court's denial of the Borough's request.  



V.          CONCLUSION  



                       We REVERSE the superior court's decision granting summary judgment  

                                                                                                                                      



in favor of the Borough and REMAND to allow the court to enter judgment in favor of  

                                                                                                                                                   



the State.  

       



            140        State v. Alex        , 646 P.2d 203, 209 (Alaska 1982) (citing A                              LASKA STATEHOOD  



COMM'N,  supra  note 44, at 29-30).              



            141        Id .;  see also       FORMAL  OP. A             TT'Y  GEN.,  supra  note 44, at 3.                 



            142  

                                                                                                                        

                       See Alaska Const. art. II,  15; Alaska Const. art. IX,  13.  



                                                                       -36-                                                                  7075
  


----------------------- Page 37-----------------------

                                          

STOWERS, Chief Justice, concurring.  



                                                                                                                               

                    I join in the court's opinion.  But like Justice Winfree, I am concerned that  



                                                                                                                      

the court was not given the opportunity to decide the dedicated funds question controlled  



                                                                                                                             

by article IX, section 7 of the Alaska Constitution as presented by this appeal in the fuller  



                                                                                                                                      

context of the public schools clause of article VII, section 1 of the Alaska Constitution.  



                                                                                                                          

I do not believe that this court's opinion today necessarily determines that the State's  



                                                                                                                              

required  local  contribution  would  survive  constitutional  scrutiny  under  article  VII,  



                                                                                                                               

section 1 - it might, it might not - but the parties intentionally did not litigate this  



                                                                                                                       

question either in the superior court or this court, and notwithstanding pointed questions  



                                                                                                                               

by several justices in oral argument inquiring into the potential application of article VII,  



                                                                                                                                      

section 1, the parties adamantly insisted that constitutional provision was not in issue.  



                                                                                                                                  

In my view, therefore, the question whether the State's required local contribution is  



                                                                                                                         

constitutional under the public schools clause remains an undecided question.  



                                                               -37-                                                         7075
  


----------------------- Page 38-----------------------

WINFREE, Justice, concurring.         



                         Statutes are presumed to be constitutional, and the party challenging a                                                             



statute's constitutionality has the burden of persuasion; doubts are resolved in favor of                                                                   

                               1  Although I have considerable doubt about the constitutionality of the  

constitutionality.                                                                                                                                         



statutorily requiredlocalcontribution (RLC) publicschools fundingcomponent, Icannot  

                                                                                                                                                    



conclude that the presumption has been overcome in this case. I therefore agree that the  

                                                                                                                                                           



superior court's primary decision - that the RLC is an unconstitutional dedicated tax  

                                                                                                                                                          



-  should be vacated.   But I do not rule out an ultimate conclusion that the RLC is  

                                                                                                                                                            



unconstitutional, as a dedicated tax or otherwise, and therefore do not join the court's  

                                                                                                                                                   

analysis  or  decision  on  this  point.2                              In  my  view  the  question  cannot  be  answered  

                                                                                                                                              



definitively without a full interpretation and understanding of the Alaska Constitution's  

                                                                                                                                      



public  schools  clause,  which,  apparently  for  strategic  reasons,  the  parties  did  not  

                                                                                                                                                         



confront.  



                         Addressing how the RLC has every appearance of a dedicated tax warrants  

                                                                                                                                                



a brief discussion of the public schools clause.   Article VII, section 1 of the Alaska  

                                                                                                                                                   



Constitution states in relevant part:  "The legislature shall by general law establish and  

                                                                                                                                                         



maintain a system of public schools open to all children of the State . . . ."  

                                                                                                                                     

                                                                                                                             3 when wereversed  

                         Weaddressed this provisionin Macauleyv.Hildebrand,  

                                                                                                                                                 



a superior court decision allowing a borough to require that a non-consenting borough  

                                                                                                                                                 



school district use the borough's centralized system for accounting control over funds  

                                          



            1           Alaskans for a Common Language, Inc. v. Kritz                                         , 170 P.3d 183, 192 (Alaska           



2007).  



            2            I agree with the court's analysis and conclusion affirming the superior  

                                                                                                                                                

court's secondary decision that the RLC does not violate the Alaska Constitution's  

                                                                                                                                     

appropriations or governor's veto clauses.  

                                                                



            3            491 P.2d 120 (Alaska 1971).  

                                                                   



                                                                            -38-                                                                      7075
  


----------------------- Page 39-----------------------

                                                               4  

appropriated to the school district.                              An existing statute allowed centralized accounting                        



upon the school district's consent, and the issue before us was the validity of the borough                                                      

                                                                     5   We stated the general rule that, notwithstanding  

ordinance conflicting with the statute.                                                                                           

                                                                                                                           6  "the determination  

the constitution granting broad powers to home rule municipalities,                                                                    

                                                                                                 



of whether a home rule municipality can enforce an ordinance which conflicts with a  

                                                                                                                                                              

state statute depends on whether the matter regulated is of statewide or local concern."7  

                                                                                                                                                                 



We held that the question was controlled by article VII, section 1:  

                                                                                                                       



                         This constitutional mandate for pervasive state authority in  

                                                                                                                                    

                         the field of education could not be more clear.   First, the  

                                                                                                                                 

                         language is mandatory, not permissive.  Second, the section  

                                                                                                                           

                         not  only  requires  that  the  legislature  "establish"  a  school  

                                                                                                                           

                         system, but also gives to that body the continuing obligation  

                                                                                                                     

                         to   "maintain"   the   system.                            Finally,   the   provision   is  

                                                                                                                                  

                         unqualified;               no       other          unit        of      government                 shares  

                                                                                                                        

                         responsibility or authority.[8]  

                                                         



We later confirmed that article VII, section 1's mandate that the legislature establish and  

                                                                                                                                                          



            4           Id .  at   121-22.  



            5           Id .  at   121.  



            6            Cf.  Alaska  Const.  art.  X,     11.  



            7           Macauley,  491  P.2d  at   122  &  n.4.  



            8           Id .  at  122  (emphasis  added)  (footnote  omitted)  (quoting  Alaska  Const.  art.  



VII,      1).     We   also  noted   that   the   legislature's   delegation   of   "certain   educational  

functions"  to  local  school  boards  "does  not  diminish  this  constitutionally  mandated  state  

control  over  education."   Id .  



                                                                            -39-                                                                      7075
  


----------------------- Page 40-----------------------

maintain a public schools system has a dual nature:                                 "It imposes a [constitutional] duty             



upon   the   state   legislature,   and   it   confers   upon   Alaska   school   age   children   a  

[constitutional] right to education."                    9  



                                                                                                                                       

                     In  what  otherwise  is  a  vacuum  the  RLC  has  all  the  hallmarks  of  an  



                                                                                                                     

unconstitutional dedicated tax. The RLC is a State-imposed mandate that municipalities  



                                                                                                                                       

raise specified funds for the State's public schools system; it is a revenue source for the  

                                                                                 10  - and the revenues are dedicated  

                                                                                                                            

State - and a tax by any other name remains a tax 

to the State's public schools system even though they never enter the State's treasury.11  

                                                                                                                           



                     I find unpersuasive the court's conclusion that the RLC is exempt from the  

                                                                                                                                       



dedicated tax  prohibition because it is a post-statehood continuation of a territorial  

                                                                                                                                             



dedicated tax or a cooperative effort to establish and maintain public schools.  First, the  

                                                                                                                                       



RLC was not a part of the territorial municipal school funding system.  (The territorial  

                                                                                                                            



tax dedicated to schools discussed at the constitutional convention was a tobacco tax  

                                                                                                                                      

                                                       12) In the territorial system municipal school districts  

earmarked for school construction.                                                                                             

                                    



were required to determine their own budgets and local tax-funding levels, but were  

                                                                                                                                   



promised  some  level  of  territorial  reimbursement.                                    Now  the  State  determines  a  

                                                                                                                                         



foundational "basic need" for all school districts and requires municipalities to fund  

                                                                                                                                    



specific amounts of that "basic need" in their school districts.  The territorial system did  

                                                                                                                                       



not include a dedicated tax on municipalities; the current system appears to do so.  

                                                                                                                                             



           9         Hootch   v.  Alaska   State-Operated   Sch.   Sys.,   536   P.2d   793,   799   (Alaska  



 1975).  



           10        See  State  v.  Alex ,  646  P.2d  203,  208-10  (Alaska   1982).  



           11        See  id.  at  207-08.  



           12        See  4  Proceedings  of  the  Alaska  Constitutional  Convention  (PACC)  2370  



(Jan.   17,   1956).  



                                                                  -40-                                                             7075
  


----------------------- Page 41-----------------------

Second, the State has the constitutional duty to establish and maintain the public schools                                                                                                           



system in                  Alaska,   not   municipalities.    It   is   difficult   to   understand   how   mandatory  



delegation of functions and municipal funding for the State's public schools system can                                                                                                                        



be a cooperative effort. More importantly, the court misperceives our earlier discussion                                                                                                      



about funding cooperative efforts - we did not suggest the framers approved of a state                                                                                                                     



tax dedicated to a cooperative effort, but rather approved of dedicating State revenues,                                                                                                        

after they reach the State treasury, to a cooperative effort (and other uses of revenues).                                                                                                                          13  



                                 What then gives me pause?  By apparent design, the tail may be wagging  

                                                                                                                                                                                                  



the dog - the parties appear to be using the dedicated tax clause to define the public  

                                                                                                                                                                                                        



schools clause's limits.  

                                          



                                 If we focus solely on the constitutional prohibition of  dedicated taxes and  

                                                                                                                                                                                                               



conclude  that  the  RLC  is  a  dedicated  tax,  we  may  be  inferentially  but  necessarily  

                                                                                                                                                                                           



concluding that the public schools clause is a constitutional mandate that the State alone  

                                                                                                                                                                                                          



must provide the funds necessary to meet at least minimum constitutional requirements  

                                                                                                                                                                                       

                                                                                                                                    14         Under  this  view  municipal  

for  the  statewide  unified  public  schools  system.                                                                                                                                       

                                                                                                               



contributions to local public schools may not be compelled, but may be volunteered to  

                                                                                                                                                                                                                   



supplement State funding to enhance local educational opportunities.  This would be a  

                                                                                                                                                                                                                     

remarkable conclusion to reach without ever considering the public schools clause.15  

                                                                                                                                                                                              



                 13              Alex , 646 P.2d at 209-10.                   



                 14               Cf. Matanuska-Susitna Borough Sch. Dist. v. State, 931 P.2d 391, 405  

                                                                                                                                                                                                              

(Alaska  1997)  (Matthews,  J.,  joined  by  Rabinowitz,  J.,  concurring)  (noting  public  

                                                                                                                                                                                                       

schools clause might support a constitutional claim when funds "are insufficient to pay  

                                                                                                                                                                                                               

for a level of education which meets standards of minimal adequacy").  

                                                                                                                                                   



                 15              I recognize that in State v. Alex, 646 P.2d at 210-11, we concluded that the  

                                                                                                                                                                                                                

legislature's  general  constitutional  authority  over  natural  resources  could  not  be  

                                                                                                                                                                                                                

construed to override the constitutional prohibition of a dedicated tax, an analysis that  

                                                                                                                                                                                      (continued...)  



                                                                                                       -41-                                                                                                7075
  


----------------------- Page 42-----------------------

                         I certainly do          not suggest that             this interpretation ofthepublicschools                                clause  



would be incorrect.                   Looking only at the constitutional language and our limited case                                                  



law, a credible argument can be made that the constitution requires funding the public     

                                                                                                                                                 16     The  

schools   system   in   a   significantly   different   manner   than   in  territorial   days.                                                         



constitution mandates that the State, through the legislature, "establish and maintain" a  

                                                                                                                                                              

public schools system,17  and our case law establishes both that it is a unified public  

                                                                                                                                                    

schools system18  and that "no other unit of government" shares the State's obligation.19  

                                                                                                                                                                  



This  seems  inconsistent  with  a  RLC;  if  the  current  RLC  is  allowable,  the  State  

                                                                                                                                                      



theoretically could craft a RLC compelling a municipality to pay for all of its public  

                                                                                                                                                    

schools system costs without any State contribution whatsoever.20  

                                                                                                 



            15           (...continued)  



                                                                                                                                                          

may apply in this context as well.  But I decline to apply it in rote fashion without a full  

                                                                                                 

explication and understanding of the public schools clause.  



            16           Cf. Opinion, pp. 12-13.  

                                                        



            17           Alaska Const. art. VII,  1.  

                                                                       



            18          Hootch v. Alaska State-Operated Sch. Sys., 536 P.2d 793, 799 (Alaska  

                                                                                                                                                 

 1975).  



            19          Macauley v. Hildebrand, 491 P.2d 120, 122 (Alaska 1971).  

                                                                                                                           



            20           This could have been possible in the territorial system because municipal  

                                                                                                                                              

school districts were required to set their own public schools budgets and related tax  

                                                                                                                                                          

levels and then hope for territorial reimbursement. But this also seems inconsistent with  

                                                                                                                                                        

the subsequent constitutional directive that the State, through the legislature, establish  

                             

and maintain a statewide public schools system.  

                                                                           



                         An interesting question not before us is whether the State could avoid its  

                                                                                                                                     

constitutional  obligation  to  maintain  a  statewide  unified  public  schools  system  by  

                                                                                                                                                           

refusing to fund school operations if a municipality does not comply with the RLC  

                                                                                                                                                       

mandate.  See AS 14.17.410(d) (providing that if the RLC is not made, the State will not  

                                                                                                                                                          

                                                                                                                                       (continued...)  



                                                                            -42-                                                                      7075
  


----------------------- Page 43-----------------------

                        On the other hand the public schools clause does not expressly provide that                                                 



                                                                                                  21  

the State must fund the statewide public schools system.                                                                                    

                                                                                                      Before statehood the territory  

                                                                     22   and there was little discussion of the public  

                                                                                                                                               

                                                       

did not alone fund municipal schools, 

                                                                                    23   And as the court notes, shortly after  

schools clause at the constitutional convention.                                                                                                  

                                                                



statehood the legislature created a public schools funding framework inconsistent with  

                                                                                                                                                  

the notion that the State is solely obligated to fund the public schools system.24   Perhaps,  

                                                                                                                                           



as the court concludes - but not for its stated reasons - the RLC is constitutionally  

                                                                                                                               



viable. But this conclusion may also inferentially and necessarily require the conclusion  

                                                                                                                                       



            20          (...continued)  



provide   any   school   funds);   cf.  Matanuska-Susitna   Borough   Sch.   Dist. v.   State,   931  

P.2d 391, 405  (Alaska 1997) (Matthews, J., joined  by  Rabinowitz, J.,  concurring)  (noting  

public  schools  clause  might  support  a  constitutional  claim  when  funds  "are  insufficient  

to  pay  for  a  level  of  education  which  meets  standards  of  minimal  adequacy").  



            21          Cf. Alaska Const. art. VII,  1.  

                                                                           



            22          See Opinion, pp.  12-13.  

                                                       



            23          See VICTOR  FISCHER, ALASKA'S  CONSTITUTIONAL CONVENTION  140  (1975)  

                                

("Except  for  the  proposed  prohibition  of  public  funds being  used  for  direct  benefit  of  

private   educational   institutions,   the   [public   education]   article   was   not   controversial.   

Lack  of  disagreement  was  due  to  the  fact  that  the  functions  covered  by  the  article  were  

already  being  carried  out  under  the  territorial  government.").  



            24          See  Opinion, pp. 21-23.   The court states that this reflects the  framers'  

                                                                                                                                           

intent that the State could mandate local contributions to the statewide schools system,  

                                                                                                                                             

citing Bradner  v. Hammond,  553  P.2d  1, 4  n.4  (Alaska  1976) ("Contemporaneous  

                                                                                                                      

interpretation of fundamental law by those participating in its drafting has traditionally  

                                                                                                                                     

been viewed as especially weighty evidence of the framers' intent.").  By my count 10  

                                                                                                                                                      

constitutional delegates were in the 60-member 1961-62 legislature: Delegates Coghill,  

                                                                                                                                            

Hellenthal,  McNealy,  McNees,  Metcalf,  Nolan,  Peratrovich,  Smith,  Sweeney,  and  

                                                                                                                                                   

Taylor.  



                                                                         -43-                                                                    7075
  


----------------------- Page 44-----------------------

that the State does not have a constitutional duty to fund the statewide public schools                                                                                                                                                                                                                                                                                                                                                                                                       



 system.  



                                                                                  I am left with the following conclusions.                                                                                                                                                                                                                               If the public schools clause                                                                                                                 



requires that the statewide schools system be funded to a constitutionally acceptable                                                                                                                                                                                                                                                                                                                                                                                      



minimum by the State, then the RLC likely is an unconstitutional dedicated tax.                                                                                                                                                                                                                                                                                                                                                                                                                          If the   



public schools clause allows the legislature to require local funding for the statewide                                                                                                                                                                                                                                                                                                                                                                                            



unified schools system, then, depending on its parameters                                                                                                                                                                                                                                                                                              for requiring local funding, the                                                                                                                                     



RLC   may   or   may   not   be   an   unconstitutional   dedicated   tax.     But,   deliberately,   the  



 interpretation of the public schools clause was not litigated in the superior court and,                                                                                                                                                                                                                                                                                                                                                                                                                          



therefore, was not meaningfully briefed in this appeal.                                                                                                                                                                                                                                                                                           Although I have considerable                                                                                 



 doubt that the RLC is constitutional, on this record and briefing I must resolve that doubt                                                                                                                                                                                                                                                                                                                                                                                                               



 in favor of the presumption that it is constitutional.                                                                                                                                                                       



                                                                                                                                                                                                                                                            -44-                                                                                                                                                                                                                                                 7075
  

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