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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Office of Lieutenant Governor, Division of Elections, and Kevin Meyer, in an official capacity v. Vote Yes for Alaska's Fair Share (1/8/2021) sp-7499
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
OFFICE OF LIEUTENANT GOVERNOR, ) Supreme Court No. S-17818
DIVISION OF ELECTIONS, and )
KEVIN MEYER, ) Superior Court No. 3AN-19-11106 CI
IN AN OFFICIAL CAPACITY, )
)
Appellant, ) O P I N I O N
)
v. ) No. 7499 - January 08, 2021
)
VOTE YES FOR ALASKA'S FAIR SHARE, )
Appellee. )
_______________________________________)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Jessica M. Alloway, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellants. Robin O. Brena and Jack S. Wakeland, Brena, Bell & Walker, P.C., Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Maassen, and Carney, Justices, and Eastaugh, Senior Justice. [Borghesan, Justice, not participating.]
WINFREE, Justice. I. INTRODUCTION
*1 When a law is proposed by initiative the lieutenant governor has a duty to prepare a true and impartial ballot
summary to assist voters in making informed and intelligent decisions whether to approve the initiative. Sponsors of
an initiative that would revise taxation for a defined set of oil producers filed a superior court complaint seeking
declaratory judgment that the lieutenant governor's initiative ballot summary was not true and impartial. The superior
court held that one ballot summary sentence included "partisan suasion" by weighing in on a disputed *682 initiative
provision's meaning, and the court ordered that sentence deleted. The lieutenant governor appealed, arguing that the
disputed sentence was fair and impartial, but requesting that, if we affirmed the court's decision, we allow the lieutenant
governor to insert a proposed replacement sentence. After expedited briefing and oral arguments, we issued a brief order
affirming the court's ruling and judgment but allowing, at the lieutenant governor's discretion, the portion of the proposed
replacement sentence to which the sponsors had no objection. We stated that "[a]n opinion explaining the reasoning for this
order will follow at a later date." This opinion sets forth the reasons for our earlier order.
II. FACTS AND PROCEEDINGS
A. Initiative
In August 2019 an initiative sponsor group, Vote Yes For Alaska's Fair Share, submitted to Lieutenant Governor Kevin Meyer
a proposed initiative entitled "An Act relating to the oil and gas production tax, tax payments, and tax credits."1
Section 1 states: "Notwithstanding Any Other Statutory Provisions to the Contrary, the Oil and Gas Production Tax in AS 43.55
Shall be Amended as Follows." The initiative would revise Alaska's taxation scheme for a defined set of oil producers. Three
of the initiative's nine sections have been central to this dispute, although this appeal's focus is on only the seventh section.
*2 Section 2 institutes a new oil production tax, described in Sections 3 and 4, that will:
only apply to oil produced from fields, units, and nonunitized reservoirs north of 68 degrees north latitude that have produced
in excess of 40,000 barrels of oil per day in the previous calendar year and in excess of 400,000,000 barrels of total cumulative oil
production. For other oil production, the tax shall be unchanged by this Act.
Section 4(b) provides that for Section 2 's defined oil production:
An additional production tax shall be paid for each month for which the producer's average monthly Production Tax Value of taxable
oil is equal to or more than $50. The additional tax shall be the difference between the average monthly Production Tax Value of a barrel
of oil and $50, multiplied by the volume of taxable oil produced by the producer for the month, multiplied by 15 percent.
Lastly, Section 7, entitled "Public Records," provides:
All filings and supporting information provided by each producer to the Department[2] relating to the calculation and payment of the
taxes set forth in Sections 3 and 4 shall be a matter of public record. B. Attorney General Opinion
Lieutenant Governor Kevin Meyer referred the initiative application to Attorney General Kevin Clarkson for legal review.3 In *683 October
2019 an Attorney General Opinion was issued regarding the proposed initiative bill.4 The Opinion asserted that "the language of the bill
is difficult to interpret and raises a number of implementation and constitutional questions."5 The Opinion questioned several provisions,
in particular noting that Section 7 "would establish that all filings and supporting information provided to the Department of Revenue
relating to the tax calculations of sections 3 and 4 shall be a matter of public record."6 The Opinion explained that Section 7 "raise[s]
concerns over the constitutional right to privacy" and that most relevant documents would "likely be protected from disclosure."7 The
Opinion observed that "making the tax documents 'a matter of public record' simply means the Public Records Act applies" and that
the "Department of Revenue would have to review all the requested records" for appropriate redactions.8 The Opinion further noted a
"conflict with current law that actually makes it a crime to disclose confidential tax documents" and implementation difficulties for
the Department of Revenue.9
The Opinion nonetheless concluded that "the proposed bill and application are in the proper form for an initiative and the application
complies with the constitutional and statutory provisions governing the use of the initiative" and recommended that the lieutenant
governor certify the initiative application.10 The Attorney General Opinion included a "ballot-ready petition title and summary."11
C. Initiative Sponsors' Complaint
*3 A few days after the Attorney General Opinion issued, an initiative sponsor corresponded with the Department of Law about revising
the proposed initiative summary. The Department of Law declined to consult with the sponsors, explaining that the Division of Elections
"believe[d] the summary [met] the statutory requirements of neutrality and readability" and that "feedback on a summary before
finalizing is in the context of *684 ongoing litigation over certification."12
In November 2019 the sponsors filed a superior court complaint against the State of Alaska, the Office of the Lieutenant Governor, the
Division of Elections, and Lieutenant Governor Kevin Meyer in an official capacity.13 The sponsors alleged that the initiative summary
misrepresented: (1) Section 2 concerning the initiative's applicability; (2) Section 4(b) concerning an additional 15% tax on net production
value at $50 per barrel or more; and (3) Section 7's tax information disclosure requirements.
The sponsors asserted in relevant part that Section 2 states that the initiative's provisions "apply to oil produced from fields, units,
and nonunitized reservoirs north of 68 degrees north latitude that have produced in excess of 40,000 barrels of oil per day in the previous
calendar year and in excess of 400,000,000 barrels of total cumulative oil production" (sponsors' emphasis). But the lieutenant governor's
summary included the following language:
This act would change the oil and gas production tax for areas of the North Slope where the company produced more than 40,000 barrels of
oil per day in the prior year and/or more than 400 million barrels total. It is unclear whether the area has to meet both the 40,000 and
400,000 million thresholds or just one of them.[14] (Sponsors' emphasis.) The sponsors also asserted that Section 1 of the initiative indicated "the Oil and Gas Production Tax in AS 43.55 shall be amended as
follows" and that Section 4(b) described the initiative's tax on production tax value as an "additional production tax" to the existing
35% tax on production tax value.15 (Emphasis in original.) But the lieutenant governor's summary stated: "[Section 4] does not designate
what tax [it] is in addition to. The result is that this tax would likely always be less than" the existing 35% tax on production tax value.
The sponsors alleged that the Section 4(b) summary suggests the initiative would impose only a single tax on production tax value, contrary to
the initiative's actual terms imposing a tax in addition to the existing tax.
*4 The sponsors further asserted that the summary misrepresented Section 7. They asserted that the Opinion correctly observed the initiative
would supersede existing law by making certain defined producers' tax information "a matter of public record." Despite this observation,
the summary stated:
The Act would also make all tax documents relating to the calculation and payment of the new taxes a matter of public record. This would
mean the documents would be reviewed under the normal Public Records Act process, and any information that needed to be withheld, for example
for privacy or balance-of-interests reasons, would be withheld. (Sponsors' emphasis.) The sponsors alleged that "the Attorney General has interpreted this phrase to mean there would be no change to the status quo and the tax
documents would continue to be confidential." The sponsors began circulating the initiative petition for voter signatures with the disputed petition summary in place while seeking to
correct the summary for use on a future general election ballot.16 They requested a declaratory judgment and an injunction *685 requiring the
State "to correct the prepared summary for the ballot with regard to the inaccuracies" detailed in the complaint without requiring
recirculating the initiative petition.17
In March 2020 the lieutenant governor notified the sponsors that they had gathered sufficient petition signatures and that the initiative
petition was properly filed.18 The lieutenant governor scheduled the initiative to appear on the November general election ballot.19 The
notice included a revised ballot summary, addressing the sponsors' complaints about Sections 2 and 4(b). Regarding Section 7, the new ballot
summary provided: "The act would also make all filings and supporting information relating to the calculation and payment of the new taxes
'a matter of public record.' This would mean the normal Public Records Act process would apply." The sponsors continued their suit to
challenge the Section 7 ballot summary, specifically the final sentence referencing the Public Records Act. They did not file a new complaint
challenging the ballot summary.
*5 In May the parties filed cross-motions for summary judgment.20 The State sought dismissal because the sponsors had not filed a new
complaint after the lieutenant governor finalized the ballot summary. The State further argued that the ballot summary "impartially and
accurately" summarized the initiative and that the challenged sentence pointed out "certain areas of ambiguity in the initiative."
The sponsors acknowledged the lieutenant governor's correction of two of the three ballot summary problems their complaint described, but
they asserted the ballot summary continued "to misconstrue Section 7." The sponsors also argued that the lieutenant governor had personal
bias against the initiative because of his previous work in the oil industry.
The superior court heard oral argument and ruled in the sponsors' favor. The court held that the State had "sufficient and timely
notice of the continuing objections to section 7" and that "[t]here was insufficient (if any) substantive change between the two
summaries to necessitate a new notice or any amendment to the complaint." After examining three statutes using the term "a matter of
public record,"21 the court noted that "the phrase 'a matter of public [record]' is often used as shorthand to mean information or
documents are not [to] be kept confidential but will be available for public inspection." The court acknowledged that the parties'
interpretations of "a matter of public record" appeared to conflict; under the State's interpretation "the [oil] producers could
still assert statutory exceptions to public access and thus records would remain confidential." But the court explained that its analysis
was restricted to determining whether the ballot summary was true and impartial. The court noted that including the State's interpretation
would improperly "weigh[ ] in on the dispute over the meaning of section 7." The court concluded that "the voters should be *686
permitted to voice their opinions of the sponsors' intentions without [the lieutenant governor] opining that the initiative does not achieve
[ ] the level of transparency that the sponsors seek through section 7." The court ordered deletion of the Section 7 ballot summary's final
sentence: "This would mean the normal Public Records Act process would apply."
A few days after the superior court's summary judgment order, the State asked the court to make additional findings and amend the judgment22
or, alternatively, to reconsider its decision.23 The State argued that the court's order "did not foreclose the [l]ieutenant [g]overnor from
making further changes to better conform to the [c]ourt's order while also ensuring that voters have a full, accurate, and impartial summary
that does not weigh in on the dispute over the meaning of section 7." The State argued that without an additional sentence there would be an
"information void that, if left uncorrected, is misleading to voters." The State requested that the court amend its order to include in
the Section 7 ballot summary a new final sentence: "The act does not specify the process for disclosure of the public records and whether
any exceptions may apply."
*6 The superior court denied the State's motion and entered final judgment requiring that the State "delete from the ballot summary the
sentence 'This would mean the normal Public Records Act process would apply.' " This appeal followed.
After expedited briefing the parties argued the case to us on August 20. On August 26 we issued an order, with an opinion to follow,
affirming the superior court's ruling and final judgment and granting in part the request to, at the lieutenant governor's discretion,
include in the Section 7 ballot summary only the first phrase of the proposed sentence: "The act does not specify the process for
disclosure of the public records."24
III. STANDARD OF REVIEW
[1][2][3][4]We review de novo a superior court's summary judgment decision, including its determination of a ballot summary's legal
sufficiency.25 Whether a petition summary or ballot summary is biased or misleading is a question of law to which we apply our independent
judgment.26 We will adopt the rule of law that is most persuasive in light of precedent, reason, and policy.27
*687 IV. DISCUSSION
A. A True And Impartial Ballot Summary Protects The People's Lawmaking Right.
[5][6]Alaskans exercise their constitutional lawmaking right when they cast their ballots for or against a proposed initiative.28 When an
initiative petition gathers sufficient support and the lieutenant governor certifies the initiative for placement on the ballot, the lieutenant
governor must prepare a ballot title and summary giving "a true and impartial summary of the proposed law."29 "[T]he basic purpose of the
ballot summary is to enable voters to reach informed and intelligent decisions on how to cast their ballots - decisions free from any
partisan suasion."30 An initiative "should be presented clearly and honestly to the people of Alaska"31 and the summary "must be
'a Previous TermfairNext Term, concise, true and impartial statement of the intent of the proposed measure,' 'free from any misleading
tendency, whether of amplification, of omission, or of fallacy, and ... must contain no partisan coloring.' "32 Because a ballot is the
paper upon which voters give expression to their choices and exercise their lawmaking right, "[a] biased, misleading, or inaccurate ballot
undermines the voting process."33 In short, the lieutenant governor may not improperly interfere in the people's ability to cast informed
ballots.34 *7 [7][8]The people's lawmaking right is undermined by a biased, inaccurate, or misleading ballot summary not only when voters cast their
ballots, but also when, postenactment, a legal challenge requires judicial interpretation of an initiative. We more often are called upon to
interpret a statute than an initiative, and in those cases we focus on what the legislature intended. Statutory interpretation's goal is to
"give effect" to the lawmakers' intent, "with due regard for the meaning the statutory language conveys to others."35 We take a
slightly different approach for determining the "legislative intent" of an enacted initiative, examining "any published arguments made
in support or opposition to determine what meaning voters may have attached to the initiative."36 And we generally consider the election
pamphlet containing the lieutenant governor's ballot summary "an authoritative source of the voters' common understanding" of an
initiative's provisions.37 A *688 biased, misleading, or inaccurate ballot summary frustrates voters' ability to express their will and
could distort any post-enactment statutory analysis of the citizen-lawmakers' intent.38
B. The Ballot Summary's Statement, "This Would Mean The Normal Public Records Act Process Would Apply," Is An Inaccurate And Misleading
Statement.
The State argues that the original Section 7 ballot summary was "true and impartial because it accurately educates voters on the scope and
import of the proposed law by informing them that certain taxpayer records, previously defined as confidential and exempted from the scope of
the Public Records Act, would now be available under that Act." The State contends that it must mention the Public Records Act in the ballot
summary to provide "important legal context" so voters are not "misled in [their] understanding of what a 'public record' is, i.e.,
a record that is available to the public pursuant to the Public Records Act." *8 The sponsors contend that the State improperly conflates the terms "a matter of public record" with "public record," despite having
distinct definitions, and they argue that Public Records Act exemptions may apply. The sponsors assert: "The common meaning of 'a matter of
public record' in statute and case law is that 'a matter of public record' is 'not confidential.' " The sponsors further argue that
the ballot summary's "extraneous interpretive sentence could only mean the tax filings would remain confidential - the exact opposite of
the plain meaning, the obvious intent of the language, the publicly stated intentions of the sponsors, and the [Attorney General Opinion]'s
own acknowledgment of the sponsors' intention." The parties' dispute focuses primarily on the ballot summary's impartiality. We reject as irrelevant to our disposition of this appeal the
sponsors' suggestion that we should infer the lieutenant governor was personally biased. We instead review only whether the lieutenant
governor's ballot summary is objectively true and impartial. But examining the ballot summary's accuracy by looking at how Section 7 changes
current law also is important. Section 7 of the initiative provides: "All filings and supporting information provided by each producer to the
Department [of Revenue] relating to the calculation and payment of the taxes set forth in Sections 3 and 4 shall be a matter of public record.
" By contrast, in relevant part the lieutenant governor's ballot summary provides: "The act would also make all filings and supporting
information relating to the calculation and payment of the new taxes 'a matter of public record.' This would mean the normal Public Records
Act process would apply."
The Public Records Act39 covers "all public records in the state"40 and provides for public inspection of agencies' public records
unless an exception applies.41 "[T]he legislature has expressed a bias in favor of public *689 disclosure"42 and has broadly defined a
"public record."43 Although the sponsors expend considerable effort arguing that the terms "a matter of public record" and "public
record" are not the same, the parties do not dispute that the initiative would be integrated into the Public Records Act. Yet nothing in
the initiative's text provides how this could be done. The initiative therefore requires further interpretation. But the Department of
Administration "supervise[s] and adopt[s] regulations for the operation and implementation" of the Public Records Act by executive
branch public agencies,44 not the lieutenant governor and the Division of Elections.45 How the Public Records Act applies and whether this
involves "the normal Public Records Act process" (emphasis added) presently is unclear and is not within the authority of the lieutenant
governor or Division of Elections to determine. *9 The initiative also is clear that its provisions relate to the oil and gas production tax in AS 43.55. Section 1 of the initiative states:
"Notwithstanding Any Other Statutory Provisions to the Contrary, the Oil and Gas Production Tax in AS 43.55 Shall Be Amended as Follows.
" The initiative therefore also impacts the authority and responsibilities of the Department of Revenue, which receives tax information
from oil and gas producers.46 The parties agree that Section 7 of the initiative directly conflicts with AS 40.25.100, making tax information
in the Department of Revenue's possession confidential.47 The initiative further conflicts with AS 43.05.230, making it "unlawful for a
current or former officer, employee, or agent of the state to divulge the amount of income or the particulars set out or disclosed in a report
or [tax] return,"48 except in limited circumstances, and subjecting an intentional violator to imprisonment.49 The initiative's text does not
explain how it would interact with these existing statutes. The Department of Revenue,50 not the lieutenant governor or the Division of
Elections, would interpret Section 7, determine how to implement it, and decide the disclosure process.
[9][10]Section 7 thus leaves potential implementation issues for resolution by state agencies other than the Division of Elections.
Rather than simply acknowledging these remaining implementation questions, the lieutenant governor's ballot summary provides that under
Section 7 "the normal Public Records Act process would apply" without defining what that means. The lieutenant governor *690 is not
necessarily excluded from stating an initiative's legal import in a ballot summary,51 but a ballot summary must "be free from any misleading
tendency, whether of amplification, of omission, or of fallacy, and [ ] it must contain no partisan coloring."52 The ballot summary misleads
voters about Section 7's effect because the summary does not disclose disputed and unripe implementation questions that other agencies would
resolve.53 Until the proper agencies review Section 7, the lieutenant governor's assessment is speculative and improperly weighs in on its
interpretation.54
C. We Decline To Conduct Pre-Election Interpretation Of The Initiative.
*10 [11]The State also argues that "the normal Public Records Act process would apply" to information identified in Section 7 is "the
interpretation that is most likely to preserve the initiative's constitutionality." The State acknowledges that we ordinarily decline
pre-election review of initiatives, but it cites Pebble Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell55 to argue that, if we were
to rule in the State's favor and were to adopt the lieutenant governor's interpretation, we could save the initiative from future
constitutional challenge. We decline the invitation.
[12]We long have recognized that when an initiative petition meets formal filing requirements, the initiative ordinarily is not subject
to challenge unless and until it is enacted.56 "The rule against pre-election review is a prudential one, steeped in traditional policies
recognizing the need to avoid unnecessary litigation, to uphold the people's right to initiate laws directly, and to check the power of
individual officials to keep the electorate's voice from being heard."57 An exception is when the dispute is whether an initiative petition
meets statutory or constitutional requirements on the initiative's use and an aggrieved party seeks judicial review of the lieutenant
governor's decision.58 But "general contentions about an initiative's constitutionality are justiciable only after the initiative has
been passed by the electorate."59 In Pebble Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell opponents argued *691 that a clean water initiative violated constitutional
restrictions on the initiative's use by, among other arguments, making an appropriation.60 The parties agreed that a challenged term could be
construed in a manner preserving the initiative's constitutionality.61 We agreed, noting that we construe an initiative "broadly so as to
preserve it whenever possible."62 But our interpretation of the Pebble initiative's language is inapposite in this case. The primary dispute
in Pebble was whether the initiative application was in proper form or included "prohibited subjects" by making an appropriation.63 There
is no dispute that the initiative now before us is in proper form; the lieutenant governor certified the initiative petition,64 and the
attorney general's legal review concluded that the initiative "does not include any of the prohibited subjects and is not clearly
unconstitutional under existing authority."65 We therefore decline the State's invitation to interpret the initiative's effect on the
Public Records Act before voters have the opportunity to decide whether to adopt the initiative.
D. The Lieutenant Governor May Revise The Ballot Summary In Part.
*11 [13]The State argues alternatively that we should conclude the superior court abused its discretion by denying the lieutenant
governor's motion to revise the ballot summary.66 The lieutenant governor proposed replacing the deficient sentence with the following
sentence: "The act does not specify the process for disclosure of the public records and whether any exceptions may apply." The State
contends that without this additional sentence, "the summary indicates only that filings and other information are 'a matter of public
record,' strongly implying to voters that the filings and other information are unconditionally public information." The State further
explained in its reply brief that when we have held that a ballot summary violated statutory requirements, we have "either proposed revised
language or ordered the lieutenant governor to change the summary to comply with [our] decision." The State contends the superior court
should have allowed the lieutenant governor to revise the ballot summary to comply with the court's order.
The sponsors counter: "Procedurally, after the superior court ruled and resolved every issue in the case was not an appropriate time to
permit [the lieutenant governor] to change his position and introduce new ballot language for the third time." They further characterize
the revision as an "attempt at undermining the [initiative]'s plain terms" by suggesting that some exceptions to disclosure may apply
despite Section 7 clearly requiring: "All filings and supporting information ... shall be a matter of public record." (Emphasis in
original.) [14][15]The State's motion for reconsideration was subject to Alaska Civil Rule 77(k).67 Rule 77(k)(1) allows the superior *692 court to
reconsider a previous ruling if, among other reasons, the court "overlooked, misapplied, or failed to consider ... a decision or principle
directly controlling" or the court "overlooked or misconceived a material question in the case." We already have discussed the court's
correct conclusion that the ballot summary was not true and impartial. And although the State argues in its reply brief that case law allows
the lieutenant governor to revise the ballot summary to conform with the court's order,68 the State never raised this legal argument in its
motion for reconsideration.69 The State instead contended that it was "not asking the [c]ourt to reconsider the substance of its original
order" and that the State's motion was meant "[t]o avoid a future dispute over this change [to the ballot summary] and to expedite
resolution of the ballot summary issues." Neither reason warrants reconsidering the summary judgment order. Reconsideration under Rule 77(k)
may not introduce new arguments that should have been made earlier.70 The court did not abuse its discretion by denying the motion.
*12 But our analysis does not end there. Alaska law designates the lieutenant governor as the executive official having the duty to prepare
ballot summaries.71 Our role is limited to determining whether the lieutenant governor has met the statutory duty to prepare a true and
impartial ballot summary; we will not invalidate the summary simply because we believe a better one could be written.72 When we have ruled
that a ballot summary was legally deficient, we have identified the legal defects and acknowledged the lieutenant governor's statutory
authority to make revisions.73
For instance, in Alaskans for Efficient Government, Inc. v. State we ruled that the ballot summary for an initiative proposing to relocate
state legislative sessions to the Matanuska-Susitna Borough was inaccurate and *693 potentially misleading.74 We identified legal deficiencies
in the ballot summary's last sentence and suggested possible revisions.75 We remanded the case, providing the lieutenant governor an
opportunity to revise the ballot summary "as necessary to comply with [our] order."76 And in Planned Parenthood of Alaska v. Campbell
we held that the lieutenant governor's ballot summary for an abortion-related parental notification initiative was inaccurate because the
summary omitted important details, including that the initiative was a revision of a previous unconstitutional law and that the initiative
made failure to follow its prescribed code of conduct a felony.77 After identifying the legal deficiencies, we provided the lieutenant governor
an opportunity to correct the ballot summary.78
Out of respect for executive branch powers, we will consider the State's request that, should we rule the lieutenant governor's ballot
summary is biased or misleading, we "allow the lieutenant governor to revise the ballot summary in a way that is consistent with the
[c]ourt's decision."79 The lieutenant governor's proposed revision states: "The act does not specify the process for disclosure of the
public records and whether any exceptions may apply." As we previously explained, we acknowledge the genuine dispute whether the initiative
would make relevant tax information unconditionally not confidential; we decline to resolve this dispute unless and until the initiative is
enacted into law and before there is a dispute ripe for judicial decision. Despite the dispute about whether any Public Records Act
exceptions could prevent disclosure of the relevant tax filings and supporting information, at oral argument to us the sponsors acknowledged
they did not dispute the accuracy of the revised sentence's first phrase: "The act does not specify the process for disclosure of the public
records."
*13 [16]We agree that the first portion of the revised sentence is accurate and impartial. Neither the initiative nor the current provisions
of AS 43.55 specify the process for disclosing relevant tax filings and supporting information. The revised sentence's first portion
accurately points out Section 7's scope without improperly opining about its legal effect. Accordingly, we conclude that the lieutenant
governor may, at his discretion, revise the ballot summary to include the proposed revision's first phrase: "The act does not specify
the process for disclosure of the public records."
V. CONCLUSION
We AFFIRM the superior court's rulings and final judgment. We further GRANT IN PART the lieutenant governor's request to *694 add language
to the ballot summary, as noted above.
Footnotes
*Sitting by assignment made under article IV, section 11 of the Alaska Constitution and Alaska Administrative Rule 23(a). 1 Alaska's initiative process involves several steps. Initiative sponsors first must file an application with the lieutenant governor.
Alaska Const. art. XI, § 2; AS 15.45.020; see also AS 15.45.030 (listing initiative application requirements, including that application
contain proposed bill and designate three-sponsor committee); AS 15.45.040 (listing proposed bill form requirements). If the lieutenant
governor certifies the application's sufficiency, initiative petitions are prepared for the sponsors; the petitions contain, among other
things, an impartial summary of the proposed bill's subject matter. Alaska Const. art. XI, § 3; AS 15.45.070 (regarding application review
for certification); AS 15.45.090 (regarding petition preparation). The sponsors then circulate petitions throughout the state for voter
signatures, subject to statutory requirements. Alaska Const. art. XI, § 3; AS 15.45.090-.140. The necessary number of qualified voters must
sign initiative petitions for filing with the lieutenant governor "within one year from the time the sponsors received notice from the
lieutenant governor that the petitions were ready for delivery to them." AS 15.45.140. The lieutenant governor reviews the petitions and,
if properly filed, prepares a title and proposition summarizing the proposed law for placement on the ballot in the first statewide election
held more than 120 days after adjournment of the legislative session following the filing. Alaska Const. art. XI, § 4; AS 15.45.150-.190.
Any person aggrieved by the lieutenant governor's determination may file a superior court action within 30 days. AS 15.45.240.
2 See AS 43.99.950(2) (referring to "department" in AS 43.55 as Department of Revenue). 3 See Alaska Const. art XI, § 2 (providing for lieutenant governor's review of initiative for proper form); AS 15.45.070 (requiring lieutenant governor to review initiative application within 60 days and either certify or state reasons for denial). 4 State of Alaska, Dep't of Law, Op. Att'y Gen., 2019200671 (Oct. 14, 2019), http://www.law.state.ak.us/pdf/opinions/opinions_2019/19-006_190GTXReview.pdf. 5 Id. at 1. 6 Id. at 6. 7 Id. 8 Id. 9 Id. 10 Id. at 13; cf. AS 15.45.080 (specifying bases for denying certification, including initiative bill "not confined to one subject,"
"application is not substantially in the required form," or "an insufficient number of qualified sponsors"). 11 "[I]n practice the lieutenant governor employs the same summary for both the petition and ballot and ... the standards for the
adequacy of a summary are the same regardless of whether it is a petition or ballot summary." Planned Parenthood of Alaska v.
Campbell, 232 P.3d 725, 729 n.10 (Alaska 2010) (citing Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1082 n.80
(Alaska 2009)). The summaries nonetheless are subject to different constitutional and statutory provisions. Compare Alaska Const. art. XI,
§ 3 (requiring lieutenant governor, after certifying initiative application, to prepare petition containing summary of initiative's subject
matter for sponsors to circulate), and AS 15.45.090 (regarding petition preparation and requirement that each petition contain "an
impartial summary of the subject matter of the bill"), with Alaska Const. art. XI, § 4 (stating procedures for initiative election and
requiring lieutenant governor to prepare ballot title and proposition "summarizing the proposed law"), and AS 15.45.180 (requiring
lieutenant governor to prepare ballot title and proposition, giving "a true and impartial summary of the proposed law," if initiative
petition is properly filed). "[T]here are important differences between the functions served by initiative petition summaries and ballot summaries." Planned
Parenthood, 232 P.3d at 729. The petition summary serves the signature-gathering requirement to get an initiative on the ballot, ensuring
that "only propositions with significant public support are included on the ballot." Id. at 729 (quoting Citizens for Implementing Med.
Marijuana v. Municipality of Anchorage, 129 P.3d 898, 901 (Alaska 2006)). The ballot summary enables voters to "reach informed and
intelligent decisions on how to cast their ballots - decisions free from any partisan suasion." Id. at 730 (quoting Alaskans for Efficient
Gov't, Inc. v. State, 52 P.3d 732, 735 (Alaska 2002)). 12 See AS 15.45.240 (providing aggrieved person may bring superior court action to review lieutenant governor's determination
regarding statutory initiative provisions). 13 The lieutenant governor controls and supervises the Division of Elections. AS 15.10.105(a). The Division of Elections director
"act[s] for the lieutenant governor in the supervision of central and regional election offices" and in "the administration of all state
elections," including in preparing all official ballots. Id.; see also AS 15.15.010 (regarding general administrative supervision by director);
AS 15.15.030 (regarding official ballot preparation). We refer to the lieutenant governor and Division of Elections collectively as "the State"
unless individual references are necessary. 14 The State later conceded that the summary included a typographical error; it was supposed to read "400 million" instead of
"400,000 million." 15 See AS 43.55.011(e) (providing for oil and gas production tax); AS 43.55.160 (determining "production tax value of oil and gas"). 16 See AS 15.45.090-.130 (regarding initiative petition circulation). 17 See Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 732-34 (Alaska 2010) (discussing severing impermissible portions of
petition summary to correct summary for ballot without requiring recirculating initiative petition). 18 See AS 15.45.150 (requiring lieutenant governor to review petition to determine if it was properly or improperly filed
"[w]ithin not more than 60 days of the date the petition was filed"); cf. AS 15.45.160 (regarding bases for determining petition was
improperly filed). 19 See Alaska Const. art. XI, § 4 (requiring lieutenant governor to place initiative ballot title and proposition on ballot "for the
first statewide election held more than [120] days after adjournment of the legislative session following the [petition] filing");
AS 15.45.190 (requiring initiative ballot title and proposition placed on "the election ballot of the first statewide general, special,
special runoff, or primary election that is held after (1) the petition has been filed; (2) a legislative session has convened and adjourned;
and (3) a period of 120 days has expired since the adjournment of the legislative session"). 20 See Alaska R. Civ. P. 56(c) (providing court may grant summary judgment to moving party when "there is no genuine issue as to any
material fact" and "the moving party is entitled to judgment as a matter of law"). 21 AS 27.21.100 (regarding public access to information involving surface coal mining and reclamation permit applications); AS 44.88.215
(regarding Alaska Industrial Development and Export Authority records and information confidentiality); AS 39.90.010 (protecting from adverse
employer action public employee who communicates "matters of public record or information" under Public Records Act).
22 See Alaska R. Civ. P. 52(b) ("Upon motion of a party made not later than 10 days after the date shown in the clerk's certificate of
distribution on the judgment the court may amend its findings or make additional findings and may amend the judgment accordingly."). 23 See Alaska R. Civ. P. 77(k) (providing that "[a] motion to reconsider the ruling" must be filed "within ten days after the date of
notice of the ruling" unless good cause is shown for later filing). 24 Meyer v. Vote Yes for Alaska's Fair Share, No. S-17818 (Alaska Supreme Court Order, Aug. 26, 2020). 25 Citizens for Implementing Med. Marijuana v. Municipality of Anchorage, 129 P.3d 898, 901 (Alaska 2006); Sonneman v. State,
969 P.2d 632, 635 (Alaska 1998); see also Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 729 (Alaska 2010). 26 Planned Parenthood, 232 P.3d at 729. In deference to the lieutenant governor's statutory duty to prepare a ballot summary, see
AS 15.45.180(a), we will not invalidate a summary simply because a better one could be written. Planned Parenthood, 232 P.3d at 729;
Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064, 1073 (Alaska 2009); Alaskans for Efficient Gov't, Inc. v. State,
52 P.3d 732, 735 (Alaska 2002); Burgess v. Alaska Lieutenant Governor Terry Miller, 654 P.2d 273, 276 & n.7 (Alaska 1982). When a party
argues that a ballot summary is biased or misleading, despite our deference we look beyond the lieutenant governor's own assessment of
legal adequacy and focus on whether the ballot summary is objectively true and impartial. We apply our independent judgment in this
examination, see Planned Parenthood, 232 P.3d at 729, although we have noted that the burden of demonstrating whether a ballot summary is
biased or misleading lies with the challenger. Id.; Burgess, 654 P.2d at 276 ("The burden is upon those attacking the summary to demonstrate
that it is biased or misleading."). We sometimes have referred to the legal question as whether we cannot reasonably conclude that the
lieutenant governor's initiative summary is impartial and accurate. See, e.g., Planned Parenthood, 232 P.3d at 729; Alaskans for Efficient
Gov't, Inc., 52 P.3d at 735. 27 Faipeas v. Municipality of Anchorage, 860 P.2d 1214, 1217 (Alaska 1993) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 28 Meyer v. Alaskans for Better Elections, 465 P.3d 477, 478-79 (Alaska 2020). 29 AS 15.45.180(a)-(b) (providing standards for ballot title and summary and requiring lieutenant governor to abide by requirements in
AS 15.80.005). 30 Alaskans for Efficient Gov't, Inc., 52 P.3d at 735. 31 Faipeas, 860 P.2d at 1221 (emphasis in original) (quoting Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1188 (Alaska 1985)
(Moore, J., dissenting)). 32 Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 731 (Alaska 2010) (quoting Burgess v. Alaska Lieutenant Governor Terry Miller,
654 P.2d 273, 275 (Alaska 1982)). 33 Faipeas, 860 P.2d at 1222 (Moore, J., dissenting). 34 See AS 15.10.105(b) (listing personnel rules and stating "[i]t is essential that the nonpartisan nature, integrity, credibility, and
impartiality of the administration of elections be maintained"); see also Meyer v. Alaskans for Better Elections, 465 P.3d 477, 479
(Alaska 2020) (discussing constitutional protections for people's exercise of political power, including to "express[ ] their will on the
multitudinous issues which confront them" and legislate directly by initiative to serve "as a check on legislative action or inaction."
(quoting Boucher v. Bomhoff, 495 P.2d 77, 78 (Alaska 1972))). 35 Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996) (quoting Tesoro Alaska Petroleum Co. v. State, 746 P.2d 896,
905 (Alaska 1987)). We take a "sliding scale approach" when interpreting a statute: The plainer the statutory language, the more convincing evidence of contrary
legislative intent must be. State, Dep't of Commerce, Cmty. & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co., 262 P.3d 593, 597
(Alaska 2011). 36 Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192-93 (Alaska 2007); see also Wielechowski v. State, 403 P.3d 1141, 1150
(Alaska 2017) (examining voter intent of constitutional amendment by looking to published arguments); Falcon v. Alaska Pub. Offices Comm'n,
570 P.2d 469, 472 n.6 (Alaska 1977) (noting courts look to published arguments to determine meaning of voter initiative).
37 Hickel v. Halford, 872 P.2d 171, 178 n.12 (Alaska 1994); see also Kritz, 170 P.3d at 193 ("To the extent possible, we attempt to place
ourselves in the position of the voters at the time the initiative was placed on the ballot, and we try to interpret the initiative using the
tools available to the citizens of this state at that time."); State v. Lewis, 559 P.2d 630, 637-38 (Alaska 1977) (explaining constitutional
provisions are ratified by voters, requiring we look to "the meaning that the voters would have placed on ... provisions" and relying on widely
distributed report explaining constitutional provisions to Alaska voters as most "cogent expression of the intent ... of those voting for
ratification of the Constitution"). 38 See, e.g., Citizens for Implementing Med. Marijuana v. Municipality of Anchorage, 129 P.3d 898, 902 (Alaska 2006) (noting "confusing
or misleading petitions frustrate the ability of voters to express their will"); State v. Alex, 646 P.2d 203, 207-08 (Alaska 1982)
(explaining, in context of court's practice of narrowly construing statutes to avoid constitutional infirmity, that court is mindful it
should only narrowly construe statutes if it "can be done without doing violence to the legislature's intent" and that "giving the statute an
unintended meaning 'would be stepping over the line of interpretation and engaging in legislation' " (quoting Gottschalk v. State, 575 P.2d 289,
296 (Alaska 1978))). 39 AS 40.25.100-.295. 40 Griswold v. Homer City Council, 428 P.3d 180, 186 (Alaska 2018). 41 AS 40.25.110(a); AS 40.25.120 (listing exceptions). 42 City of Kenai v. Kenai Peninsula Newspapers, Inc., 642 P.2d 1316, 1323 (Alaska 1982). 43 AS 40.25.220(3) provides: "[P]ublic records" means books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items,
regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public
agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency; "public
records" does not include proprietary software programs. 44 AS 40.25.123(a). 45 See AS 44.19.020 (listing lieutenant governor's duties to: "(1) administer state election laws; (2) appoint notaries public; (3)
adopt regulations under AS 44.62 (Administrative Procedure Act) that establish for the broadcasting of notices under AS 44.62.190 and
44.62.310(e), the frequency of the broadcasts, appropriate broadcast times, and the locations for the broadcasts"); AS 15.10.105(a)
(creating Division of Elections and listing director's duties); AS 15.15.010 (setting out Division of Elections director's general
administrative supervision over conducting state elections).
46 See AS 43.55.030 (filing of oil and gas producer statements); AS 43.55.040 (listing Department of Revenue's powers).
47 AS 40.25.100(a) ("Information in the possession of the Department of Revenue that discloses the particulars of the business or
affairs of a taxpayer or other person ... is not a matter of public record.").
48 AS 43.05.230(a).
49 AS 43.05.230(f) ("A wilful violation of the provisions of this section or of a condition imposed under AS 43.55.040(1)(B) is
punishable by a fine of not more than $5,000, or by imprisonment for not more than two years, or by both."). 50 See AS 43.55.110(a) (providing Department of Revenue "may adopt regulations for the purpose of making and filing reports required
by this chapter and otherwise necessary to the enforcement of this chapter"); see also AS 44.25.020 (listing Department of Revenue's duty to
"enforce the tax laws of the state"). 51 See Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 730 (Alaska 2010) (explaining when omission may render ballot summary
legally deficient); Burgess v. Alaska Lieutenant Governor Terry Miller, 654 P.2d 273, 276 (Alaska 1982) ("[T]he Alaska Constitution and the
state electoral laws do not require the lieutenant governor to give 'special' reminders to the voters regarding the scope of a state
initiative.").
52 Alaskans for Efficient Gov't, Inc. v. State, 52 P.3d 732, 735 (Alaska 2002) (quoting Burgess, 654 P.2d at 275).
53 See, e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ("The power
of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making
of rules to fill any gap left, implicitly or explicitly, by Congress." (quoting Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 39 L.Ed.2d 270
(1974))).
54 See Burgess, 654 P.2d at 275 ("The summary may not be an argument for or against the measure, nor can it be likely to create prejudice
for or against the measures." (quoting In re Second Initiated Constitutional Amendment Respecting the Rights of the Pub. to Uninterrupted Serv.
by Pub. Emps. of 1980, 200 Colo. 141, 613 P.2d 867, 869 (1980))). 55 215 P.3d 1064, 1075-76 (Alaska 2009), abrogated on other grounds by Mallot v. Stand for Salmon, 431 P.3d 159, 167-70 (Alaska 2018). 56 Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007). 57 Id. 58 There are two grounds for judicially reviewing a petition before circulation: First, a petition may be rejected if it violates the subject matter restrictions that arise from the constitutional and statutory provisions
governing initiatives, such as article XI, section 7's prohibition on appropriation through initiative. Second, a petition may be rejected if
it "proposes a substantive ordinance where controlling authority establishes its unconstitutionality." Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714, 717 (Alaska 2006) (quoting Kodiak Island Borough v. Mahoney, 71 P.3d 896,
900 (Alaska 2003)). Cf. AS 15.45.240 (providing that any person aggrieved by lieutenant governor's determination under AS 15.45.010-.220 may
seek judicial review). 59 Kodiak Island Borough, 71 P.3d at 901. 60 215 P.3d 1064, 1071 (Alaska 2009), abrogated on other grounds by Mallott v. Stand for Salmon, 431 P.3d 159, 167-70 (Alaska 2018). 61 Id. at 1077. 62 Id. at 1075-77 (quoting Anchorage Citizens for Taxi Reform v. Municipality of Anchorage, 151 P.3d 418, 422 (Alaska 2006)). 63 Id. at 1068-69, 1073, 1077; see AS 15.45.040 (specifying form of proposed initiative bill). 64 See Alaska Const. art. XI, § 2 (providing that lieutenant governor shall certify initiative application if it is in proper form);
AS 15.45.080 (specifying bases for denying certification, including if initiative bill is "not confined to one subject" or if "application is
not substantially in the required form"). 65 State of Alaska, Dep't of Law, Op. Att'y Gen., 2019200671 (Oct. 14, 2019),
http://www.law.state.ak.us/pdf/opinions/opinions_2019/19-006_190GTXReview.pdf. 66 "We review the superior court's denial of a motion for reconsideration for abuse of discretion." Szabo v. Municipality of Anchorage,
320 P.3d 809, 813 (Alaska 2014) (quoting Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat, 307 P.3d 955, 959 (Alaska 2013)).
"A superior court abuses its discretion by making a decision that is arbitrary, capricious, manifestly unreasonable, or ... stem[s] from an
improper motive." Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016) (alterations in original) (quoting Morris v. Horn, 219 P.3d 198, 203-04
(Alaska 2009)). 67 Although the State's motion was brought partially under Rule 52(b), the State sought reconsideration of the superior court's legal
rulings under Rule 77(k). Rule 52(b) allows a party to request the court to amend its findings of fact or to make additional findings and amend
the judgment accordingly. Rule 52(b) does not apply in this case because the court never held a trial or made findings of fact; the court's
summary judgment ruling resolved only legal questions. See Alaska R. Civ. P. 52(a) ("In all actions tried upon the facts without a jury or
with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.");
Oberhansly v. Oberhansly, 798 P.2d 883, 886 n.2 (Alaska 1990) (noting party's appeal of court's decision regarding tax consequences of
particular property division was question of law not subject to Rule 52(b)). 68 See Planned Parenthood of Alaska v. Campbell, 232 P.3d 725, 734 (Alaska 2010) (affirming superior court's order); Planned Parenthood
of Alaska v. Campbell, No. 3AN-09-09236 CI, at 23-24, 2010 WL 4155321 (Alaska Super., Mar. 16, 2010) (concluding that parental notification
initiative's ballot summary was not impartial and accurate and "remand[ing] this matter to the lieutenant governor to develop a fair and
accurate summary that is consistent with the court's requirements"); Alaskans for Efficient Gov't, Inc. v. State, 52 P.3d 732, 737
(Alaska 2002) (finding ballot summary failed to meet statutory requirements, reversing court's summary judgment order, and "remand[ing] to
the lieutenant governor ... to revise the summary as necessary to comply with this order"). 69 See Alaskans for Efficient Gov't, Inc. v. State, 153 P.3d 296, 302 (Alaska 2007) (rejecting sponsors' argument for severing offending
initiative provisions because sponsors failed to argue severance issue to superior court); see also Alaska R. Civ. P. 77(k)(2) (placing burden
on moving party to "specifically state which of the grounds for reconsideration specified in [Rule 77(k)(1)] exists," and requiring moving
party to "specifically designate that portion of the ruling, the memorandum, or the record, or that particular authority, which the movant
wishes the court to consider").
70 See Stephan P. v. Cecilia A., 464 P.3d 266, 274 (Alaska 2020) ("A litigant may not introduce new evidence or arguments in the motion,
but [litigant] may move for reconsideration if '[t]he court has overlooked or misconceived some material fact.' " (footnote omitted) (quoting
Alaska R. Civ. P. 77(k)(1)(ii))). 71 Alaska Const. art. XI, § 4; AS 15.45.180; see also Alaskans for Efficient Gov't, 52 P.3d at 737 (Eastaugh, J., dissenting) (explaining
that duty to prepare ballot summary "is vested by constitution and statute in the lieutenant governor," noting executive branch has developed
institutional skill in preparing summaries, and citing AS 15.60.005 regarding readability of certain election materials); but see AS 15.45.245
("The lieutenant governor may delegate the duties imposed on the lieutenant governor by AS 15.45.010-15.45.240 to the director.").
72 Alaskans for Efficient Gov't, 52 P.3d at 735.
73 Id. at 736-37.
74 Id.
75 Id. at 737. We explained that "the summary's last sentence could be revised to reflect a true and accurate statement of the relocation
initiative" by making adjustments to the language, substituting the terms "must be informed of" for "must know," and "as would be determined
by" for "as determined by," to remove the potential "negative view of the initiative's purpose." Id. 76 Id. 77 232 P.3d 725, 730 (Alaska 2010). We explained that although a ballot summary "need not recite every detail of the proposed measure,"
the lieutenant governor's petition summary omitted three significant facts that "would give petition signers 'serious grounds for reflection,'
" requiring the facts' disclosure in the ballot summary. Id. (quoting Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064,
1082 (Alaska 2009)). 78 Id. at 728 & n.6, 734. 79 The State briefly raises a new issue in its reply brief, arguing that if the ballot summary substantially departs from the petition
summary, recirculating the initiative petition could be required to ensure sufficient public support for the revised language. Cf. Planned
Parenthood of Alaska, 232 P.3d at 731-34 (discussing severance of impermissible portions to correct petition summary for ballot without
requiring recirculating initiative petition). Because the State failed to raise this argument before the superior court and in its opening
appellate brief, we will not address it. Alaska R. App. P. 212(c)(3) (providing reply brief "may raise no contentions not previously raised
in either the appellant's or appellee's briefs"); Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n, 59 P.3d 275, 279
(Alaska 2002) (noting argument raised for first time in reply brief and not made in trial court was not properly before us).
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