MATTHEWS, Chief Justice.
Citizen groups challenged three ballot propositions to amend the Alaska Constitution because the propositions were revisions not amendments; revisions can only be accomplished through a constitutional convention. In an expedited Preliminary Opinion and Order we held that Legislative Resolve No. 59 (relating to prisoners' right's) is a revision, and struck it from the ballot.
II. FACTS AND PROCEEDINGS
The superior court granted summary judgment in favor of the State defendants and the Legislative Council, entering final judgment on September 8, 1998. This court granted expedited consideration and heard oral argument on the case on September 18, 1998. On September 22, 1998, we issued a Preliminary Opinion and Order, striking Legislative Resolve No. 59 (restricting the rights of Alaska prisoners to those guaranteed by the federal constitution), allowing in part and deleting in part Legislative Resolve No. 71 (limiting marriage to the union of one man and one woman), and allowing Legislative Resolve No. 74 (transferring the power of reapportionment from the Executive branch to a Redistricting Board).
III. STANDARD OF REVIEW
The parties agree that there are no material issues of fact before the court. Because the present case involves a question of law, we review the grant of summary judgment de novo and "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."
We based our expedited Preliminary Opinion and Order on the fact that the Constitution of the State of Alaska can be changed in only two ways—amendment and revision—and that a separate procedure must be followed for each. To amend the Constitution, the proposed change must be passed by a two-thirds vote of each legislative house and then approved by a majority of the voters.
The objective of this opinion is to elucidate the distinction between amendatory changes and revisory changes, to provide some guidance for future endeavors to change the Constitution.
The Framers of the Alaska Constitution distinguished between a revision and an amendment. Like scholars and other framers in other states, they intended this distinction to be substantive. We conclude that a revision is a change which alters the substance and integrity of our Constitution in a manner measured both qualitatively and quantitatively.
A. Revision and Amendment
The Framers of Alaska's Constitution explicitly contemplated the importance of the differentiation between amendments and revisions and between their respective fields of application.
As first proposed to the convention, article XIII allowed revisions and amendments to be adopted by two successive legislatures.
The Framers' decision to narrow the alternatives for adopting revisions by making constitutional conventions the sole permissible procedure demonstrates not only their awareness of the distinction between revisions and amendments, but also their desire to give the distinction substance, thereby ensuring that it would be observed by future generations of Alaskans.
Scholars have also concluded that a distinction exists between the two methods of constitutional change. Judge John A. Jameson, in his Treatise on Constitutional Conventions, wrote that the legislative process of amending a constitution should be confined to "changes which are few, simple, independent, and of comparatively small importance," whereas a constitutional convention is required for "a general revision of a Constitution, or even for single propositions involving radical changes as to the policy of which the popular mind has not been informed by prior discussion."
Judge Jameson's examples of topics properly considered "amendments" include changes designed to address "a doubt ... as to the construction to be put upon a particular clause[,] ... or a new distribution among the agencies of government of their constitutional powers ... to facilitate the transaction of business, or to render public operations more safe or more economical."
One purpose of requiring a constitutional convention for revisions of the constitution is to promote stability.
Another purpose is to provide a specialized body of citizens whose sole purpose is to consider the constitution as an organic whole, and to make the appropriate and necessary changes.
According to Judge Jameson, constitutional changes of a magnitude which can only be accomplished by a revision are not a task for the legislature:
The case law of other states which have similar constitutional provisions that distinguish between amendments and revisions is in accord with the scholarly writing. The courts have held that constitutions which provide for both processes of amendment and revision express a distinction of substance.
B. California's Resolution of the Issue
As the Framers of the Alaska Constitution did not sufficiently define the difference between the two concepts for our purposes, and because Alaska has not before had occasion to address the deceptively simple question of the distinction between revisory and amendatory changes, it is helpful to look to the law of California, a state which has considered the issue carefully over a period of nearly one hundred years. A line of California Supreme Court cases, beginning with Livermore v. Waite,
The California Supreme Court relied heavily on Livermore when it decided McFadden v. Jordan
Four cases on the same topic followed McFadden.
The court held that Proposition 13 was neither quantitatively nor qualitatively revisory in nature, despite the fact that it accomplished "substantial changes" in the tax system.
In Brosnahan v. Brown,
Finally, in Legislature of the State of California v. Eu,
Less than a year before Eu was decided, the California Supreme Court had applied the quantitative/qualitative analysis to a challenged initiative measure and reached a different result in Raven v. Deukmejian.
The California Supreme Court based its holding in Raven solely on the qualitative effect of the proposed amendment:
The court specifically stated that the proposed amendment did not have a quantitatively revisory effect, as it "delete[d] no existing constitutional language and it affect[ed] only one constitutional article,"
C. The Alaska Rule and Its Application to the Three Challenged Ballot Measures
The Constitution of Alaska, like that of California, provides different procedures for different methods of constitutional change.
The process of amendment, on the other hand, is proper for those changes which are "few, simple, independent, and of comparatively small importance."
1. Legislative Resolve No. 59
This measure proposed to amend the Alaska Constitution by adding a new section to article I, providing as follows:
This proposal bears an obvious similarity to the initiative measure at issue in Raven.
2. Legislative Resolve No. 71
This measure proposed to amend the Alaska Constitution by adding a new section to article I providing as follows:
Under our hybrid analysis, this proposed ballot measure is sufficiently limited in both quantity and effect of change as to be a proper subject for a constitutional amendment.
3. Legislative Resolve No. 74
This ballot measure was designed to alter the reapportionment scheme of article VI of the Alaska Constitution, concerning House and Senate districts. The Framers of the Alaska Constitution gave the power to reapportion the legislative districts to the executive branch, to be used as a check against legislative power.
This proposal, unlike Legislative Resolve No. 59, does not "fundamentally change[ ] and subordinate[ ] the constitutional role" of any branch in the governmental process.
We REAFFIRM the Preliminary Opinion and Order.
COMPTON, Justice, dissenting in part.
I have reexamined the Preliminary Opinion and Order, my partial dissent from that order, and the court's present amplification of its preliminary opinion. Nothing presented in the amplification has persuaded me now to take a different path.
First, I think it unclear just what test the court is adopting. The court cites and quotes with approval California cases that have shaped that state's development of the constitutional distinction between revisions of and amendments to its constitution. California's analysis does not focus on only one test, but rather on two: does the proposed enactment quantitatively or qualitatively revise the constitution? If a proposed enactment changes the substantial entirety of the constitution because of numerous deletions and alterations, quantitatively it may constitute a revision. On the other hand, if a proposed enactment accomplishes a far reaching change in the nature of government, qualitatively it likewise may constitute a revision even though the enactment is simple. California's analysis does not entirely preclude some degree of subjectivity in its application, but realistically it could not. The California approach seems well suited to its purpose.
This court states that it "agree[s] with the reasoning of the California Supreme Court."
The court again refers to its "hybrid analysis" in its discussion of Legislative Resolve No. 71.
The court uses the term "hybrid" again with respect to Legislative Resolve No. 74.
The California analysis, with which this court has stated it agrees, does not test by comparing quantitative and qualitative criteria; each stands on its own merits. A proposed enactment could satisfy neither test, either test, or both tests. That does not make the test a "hybrid," nor does it suggest some sort of sliding comparative scale. This court's failure to carefully articulate the test it is adopting is unfortunate.
This court's analysis is not constrained by contrary findings or analysis by the superior court. Although the superior court was asked to adopt California's Raven v. Deukmejian
It is valuable to compare Legislative Resolve No. 74 with Legislative Resolve No. 59 and Legislative Resolve No. 71. Legislative Resolve No. 59 amends article I of the Alaska Constitution by adding section 25, which, in sixty-five words or less, limits the rights of prisoners. This court has identified eleven constitutional provisions that will be actually or potentially affected by Legislative Resolve No. 59.
Legislative Resolve No. 71 amends article I of the Alaska Constitution by adding section 26, which, in forty-five words or less, defines marriage. This court concludes that this proposed enactment is a permissible constitutional amendment, not a revision, since it is limited "in both quantity and effect of change."
Legislative Resolve No. 74 is altogether another matter. It explicitly amends article VI of the Alaska Constitution by revising sections 1, 2, 3, 4, 6, 8, 9, 10, and 11, and by repealing sections 5 and 7; article XI by revising section 3; article XIV by repealing it; and article XV by adding section 29. It implicitly amends article VI of the Alaska Constitution by adding to the powers of the Chief Justice of the Alaska Supreme Court. As noted, this is brushed aside by the court as quantitatively "minimal."
This court cites carefully selected language from Legislature of the State of California v. Eu,
Citing Raven, Eu observes that "a qualitative revision includes one that involves a change in the basic plan of California government, i.e., a change in its fundamental structure or the foundational powers of its branches."
Neither Eu nor any other California case requires that the branch of government to be affected by a proposed enactment be deprived of a foundational power before the proposal constitutes a revision rather than an amendment. Rather, Eu's language is much less demanding. Its qualifiers are "affect," "alter," "change," "diminish," and "delegate."
This court acknowledges that "[t]he Framers of the Alaska Constitution gave the power to reapportion the legislative districts to the executive branch, to be used as a check against legislative power," citing a statement in the Proceedings of the Alaska Constitutional Convention that "[S]tudents and writers seem generally in accord that reapportionment... has been neglected where it has been left to legislators."
This court recognized the uniqueness of Alaska's constitutional reapportionment scheme over thirty years ago in Wade v. Nolan:
The court quotes Hellenthal at length, including his reference to other variations of a plan.
In my dissent from the court's Preliminary Opinion and Order, I remarked that
Juxtaposing these two proposed enactments today produces no less irony than it did eleven months ago when the Preliminary Opinion and Order were entered. The landscape so carefully crafted by the Alaska Constitutional Convention's Committee on Suffrage, Elections and Apportionment has been fundamentally and dramatically "affected," "altered," and "changed." The executive branch's power has been "diminished" by being "delegated" to a board of significantly different composition than that which heretofore was constituted. Legislative Resolve No. 74 does not leave the relationships between the three respective branches of government, and their respective powers, "untouched." The contrary is plainly evident. Legislative Resolve No. 74 is just as plainly a constitutional revision. The substance of Legislative Resolve No. 74 should have to undergo the deliberative scrutiny to which the issue was subjected in anticipation of statehood. To proclaim that this is a "narrow" enactment, as does this court, is to reduce reapportionment to the trivial. Years of reapportionment litigation, and hundreds of pages of Alaska Supreme Court orders and opinions, demonstrate just how important the issue is, and how wrong this court is to hold otherwise.
1. Challenged in this case are three ballot propositions to amend the Alaska Constitution which by legislative resolve are to be placed before the voters in the November 1998 general election. The superior court granted summary judgment in favor of the State defendants and the Legislative Council and entered final judgment on September 8, 1998. Because of the immediate need to decide what the general election ballot shall contain we granted expedited consideration. For the reasons set forth below we conclude that (1) Legislative Resolve No. 59 (relating to prisoners' rights) may not appear on the ballot, (2) Legislative Resolve No. 71 (limiting marriage) may appear on the ballot, but the second sentence of the proposed amendment should be deleted, and (3) Legislative Resolve No. 74 (relating to reapportionment) may appear on the ballot.
2. The Alaska Constitution recognizes two types of constitutional change. The constitution may be amended or it may be revised.
a. Amendment. There are two methods of amendment. The method relevant here is by legislative proposition which is passed by two-thirds of the members of each legislative house and adopted by a majority of the voters. Alaska Const. art. XIII, § 1. A constitutional convention may also propose amendments. These become effective if they are ratified by the voters. Alaska Const. art. XIII, § 4.
b. Revision. There is one method of revision. The constitution may be revised only by a constitutional convention ratified by the voters. Alaska Const. art. XIII, § 4.
3. All three ballot propositions are challenged on the ground that they are inappropriate as amendments under article XIII, section 1 of the Alaska Constitution. Appellants argue that the changes the propositions seek to accomplish can only be effected, if at all, by the constitutional process of revision.
4. Case law is evidently unanimous in support of the view that there is a distinction of substance between the concepts of amendment and revision and that some proposed constitutional changes can only be accomplished by revision. McFadden v. Jordan, [32 Cal.2d 330] 196 P.2d 787 (Cal.1948); Rivera-Cruz v. Gray, 104 So.2d 501 (Fla.1958). The proceedings of the Alaska Constitutional Convention indicate that the framers of our constitution were in accord with this view. 2 Proceedings of the Alaska Constitutional Convention 1247, 1251, 1275 (January 5, 1956).
5. The line between changes which are permissible as amendments and those which must necessarily be revisions cannot be drawn with precision. In general, changes which are "few and simple and independent" can be considered amendments, whereas "sweeping change" requires the revision process. See State v. Manley, 441 So.2d 864, 879 (Ala.1983) (Torbert, C.J., concurring); Jackman v. Bodine [43 N.J. 453] 205 A.2d 713, 725 (N.J.1964), both quoting sections from Judge John A. Jameson, A Treatise on Constitutional Conventions (4th ed. 1887). McFadden is instructive on the distinction between amendment and revision. We quote it at some length because it was decided by a distinguished court only a few years before the Alaska Constitution was written. Quoting from an earlier case, the McFadden court discussed revisions made by a convention in which "the entire sovereignty of the people is represented...." McFadden, 196 P.2d at 789.
Id. at 796-97. In Adams v. Gunter, 238 So.2d 824 (Fla.1970), the court opined that amendment as distinct from revision authority "includes only the power to amend any section in such a manner that such amendment if approved would be complete within itself, relate to one subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution to accomplish its purpose." Id. at 831.
6. The above authorities are quoted merely to suggest factors that should be considered in determining whether a proposed constitutional change is amendatory or revisory. In making such a determination, respect for the legislature and the electoral process requires that courts should decline to order a measure removed from the ballot except in clear cases. See Meiners v. Bering Strait Sch. Dist., 687 P.2d 287, 296 (Alaska 1984).
7. Legislative Resolve No. 59. This measure proposes to amend the Alaska Constitution by adding a new section to article I providing as follows:
1998 Legislative Resolve No. 59 (HCS CSSJR 3). All provisions of the Alaska Constitution granting prisoners' rights not granted under the federal constitution are superseded or amended by this measure. Numerous provisions of the Alaska Constitution are either actually or potentially affected. Changed or potentially changed would be such constitutional guarantees as the right of all persons to equal rights, art. I, § 1; freedom of religion, art. I, § 4; freedom of speech, art. I, § 5; the right to petition government, art. I, § 6; the right to due process of law, art. I, § 7; protections from double jeopardy and self-incrimination, art. I, § 9; the right to counsel, art. I, § 11; protection from excessive bail, excessive fines and cruel and unusual punishment, art. I, § 12; the rights which flow from the principle of reformation, art. I, § 12; the privilege of habeas corpus, art. I, § 13; protection from unreasonable searches and seizures, art. I, § 14; and the right to privacy, art. I, § 22.
8. Legislative Resolve No. 59 is similar in character to the ballot measure involved in Raven v. Deukmejian, [52 Cal.3d 336, 276 Cal.Rptr. 326] 801 P.2d 1077 (Cal.1990). The measure in that case provided in part that the California Constitution "shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States...." Id. [276 Cal.Rptr. 326, 801 P.2d] at 1086. The California Supreme Court concluded that this measure "would be so far reaching as to amount to a constitutional revision...." Id. We reach the same conclusion in this case. Legislative Resolve No. 59 would eliminate the independent force and effect of so many provisions of the Alaska Constitution with respect to the rights of prisoners that it is beyond the limits of the amendatory process of article XIII, section 1.
9. Legislative Resolve No. 71. This measure would amend article I of the Alaska Constitution by adding a new section to read:
1998 Legislative Resolve No. 71 (HCS CSSJR 42). The appellees contend that the meaning of this measure is that only marriages between one man and one woman may be given official status and recognition. Appellants contend that it has broader implications. They argue that the first sentence necessarily amends the Alaska Constitution in three respects: changing the equal rights clause, art. I, § 1; the civil rights clause, art. I, § 3; and the privacy section, art. I, § 22. They contend that the second sentence divests the judiciary of the power to interpret the constitution. Further, they argue that the second sentence "permits the criminalization of homosexual relationships..." and may modify the free exercise of religion clause of article I, section 4 "because some religions ... perform same sex marriages today."
10. In our view the first sentence of the resolve is not so broad in scope that it is impermissible as an amendment. It potentially affects the meaning of the equal rights clause contained in article I, section 1. Article I, section 3 is not affected, for it does not specify sexual preference as a suspect classification. Further, it is unclear whether the right to privacy is affected, for the first sentence is concerned with recognition of marriage as an official relationship, not with private relationships. Moreover, the content of the sentence is simple to express and understand. It relates to only one subject and does not substantially affect numerous other sections of the constitution.
11. More problematical are two aspects of the second sentence of the measure. The appellants argue that the second sentence may be interpreted to permit the prosecution of individuals because they are involved in marriage-like relationships which are not officially sanctioned, and may tend to inhibit, because of this risk, religiously sanctioned marriage ceremonies. The appellees counter that the second sentence is superfluous. They argue that it is intended to say no more than that other provisions of the Alaska Constitution must be harmonized with the first sentence. Appellees suggest that this court could make it clear that the proposed amendment is not intended to interfere with or criminalize private or religiously recognized same-sex partnerships by issuing an interpretation to that effect in this case. At oral argument the appellees acknowledged that this court has the power to order the deletion of the second sentence, but questioned the need for this action since the sentence is merely surplusage. We believe that there is such a need. We do not believe that language which is surplusage should be part of the constitution. Of special concern is the possibility that the sentence in question might be construed at some future time in an unintended fashion which could seriously interfere with important rights. As decades pass, the legislative history of the resolve may fade from memory. Further, court decisions lack the permanency of constitutional language and may be overruled. The objective of the second sentence—harmonization of other provisions of the constitution with the meaning of the first sentence—will be achieved in any event, for a specific amendment controls other more general provisions with which it might conflict. Johns v. Commercial Fisheries Entry Comm'n, 758 P.2d 1256, 1264 (Alaska 1988); State v. Ostrosky, 667 P.2d 1184, 1190 (Alaska 1983). Impelled by these considerations we believe that deletion of the second sentence is appropriate.
12. Legislative Resolve No. 74. This measure would amend article VI of the Alaska Constitution concerning the apportionment of House and Senate districts. Currently reapportionment is a function performed by the Governor. Under the proposed amendment the function would be performed by a board consisting of five members, two appointed by the Governor, one appointed by the presiding officer of the Senate, one by the presiding officer of the House of Representatives, and one by the Chief Justice of the Supreme Court. 1998 Legislative Resolve No. 74 (SCS CSHJR
13. The appellants also argue that the three ballot propositions should be considered in the aggregate to be beyond the constitutional amendatory process. We reject this argument, for the measures lack substantial relationship to each other and are proposed for separate and independent approval. Cf. Rivera-Cruz v. Gray, 104 So.2d 501 (Fla.1958) (discussing "daisy chain" argument).
14. In addition to the point that the measures are beyond the amendatory process, the parties raise two other process-related issues which are appropriate for decision prior to the election. These are whether the propositions violate a constitutional one-subject requirement and whether the Lieutenant Governor's summary is fair and impartial. The Legislative Council also objects to the summary as not fair and impartial. We have examined these claims and find them to be without merit. However, the final sentence of the summary regarding marriage must be deleted in conformity with our decision regarding that measure.
15. Appellants' remaining claims are inappropriate for a pre-election challenge.
1. Legislative Resolve No. 59 shall not be placed on the ballot.
2. The second sentence of the amendment proposed by Legislative Resolve No. 71 shall not be placed on the ballot. To conform with this change the last sentence of the Lieutenant Governor's summary shall be deleted.
3. Legislative Resolve No. 74 shall be placed on the ballot.
4. An opinion will follow.
Entered at the direction of the court.
COMPTON, Justice, dissenting, in part.
The court concludes that the words "amend" and "revise," as used in article XIII of the Alaska Constitution, indeed have a different meaning. I agree. It also concludes that the proposed changes to the constitution relating to prisoners and the definition of marriage are, in whole or in part, "revisions" to the constitution and hence cannot be placed on the ballot by legislative action; only a constitutional convention can act to place these issues before the voters. I also agree. However, the court concludes that the proposed change relating to the manner by which reapportionment is accomplished is merely an "amendment." By any measure this seems unsupportable; it is particularly so in light of the court's conclusions with respect to constitutional "revisions" regarding prisoners and the definition of marriage. Therefore, I dissent from the court's conclusion regarding this issue.
The Alaska Constitution provides for a chief executive with strong powers, one of which is the power to shape the composition of the reapportionment board. Effectively, this is the power to shape the composition of the legislature itself. Indeed, Alaska's is probably the only state constitution that grants its chief executive such broad power over reapportionment. The chief executive's constitutional powers, including the power over reapportionment, were among the most debated, if not the most debated, issues at Alaska's Constitutional Convention. To now permit this issue to be brought before the voters through legislative action as a constitutional "amendment" ignores the importance which the Constitutional Convention gave to this issue, and the pervasive effect the transfer of so much constitutional power from the chief executive to the legislature will have on the manner by which voters are grouped together to elect legislators. Moreover, not only will the "amendment" divest the chief executive of much of the constitutional power that office has held since statehood, and invest the legislature with a constitutional power heretofore unknown to it, but
The proposed constitutional "revision" regarding prisoners affects a narrow class of persons comparatively few in number. Yet because it implicates numerous state constitutional provisions, and divests prisoners of state constitutional protections, we conclude that it is a constitutional "revision" that cannot be brought before the voters as a constitutional "amendment" initiated by legislative action.