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Kohlhaas v. State, Office of Lieutenant Governor

Supreme Court of Alaska

January 15, 2010

Scott KOHLHAAS, Appellant,
v.
STATE of Alaska, OFFICE OF the LIEUTENANT GOVERNOR, Appellee.

Rehearing Denied Feb. 19, 2010.

Page 106

Kenneth P. Jacobus, Kenneth P. Jacobus, P.C., Anchorage, for Appellant.

Sarah J. Felix, Assistant Attorney General, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Before: FABE, Chief Justice, EASTAUGH, and WINFREE, Justices.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

In 2003 Scott Kohlhaas proposed a ballot initiative calling for a statewide vote on whether Alaska should secede from the United States. The lieutenant governor refused to certify Kohlhaas's initiative, and the superior court concluded that his refusal was proper. Affirming the judgment of the superior court, we held that the lieutenant governor had correctly declined to certify Kohlhaas's initiative because secession is a clearly unconstitutional end.

In 2007 Kohlhaas drafted a second initiative on this topic, this time calling for a statewide vote on whether the State should seek changes in existing law and constitutional provisions that would authorize Alaska's secession from the United States. The lieutenant governor again declined to certify the initiative for circulation, and the superior court again concluded that the lieutenant governor's denial of certification was proper, granting the State's motion for summary judgment. Kohlhaas appeals.

Kohlhaas's revised initiative seeks either secession itself or a change in existing constitutional law to allow secession. Because secession is clearly unconstitutional, and because the people of Alaska may not effect constitutional change through the initiative process, Kohlhaas's revised initiative is an improper subject for the initiative process. The lieutenant governor correctly denied certification of the initiative. We thus affirm the superior court's judgment.

II. FACTS AND PROCEEDINGS

A. Initiative 03INDP and Kohlhaas I

In April 2003 Scott Kohlhaas submitted an initiative to the Office of the Lieutenant Governor, accompanied by at least one hundred qualifying signatures as required by Alaska law.[1] The initiative, known as 03INDP, read as follows:

INITIATIVE PETITION:
AN INITIATIVE REQUIRING THE STATE OF ALASKA TO VOTE ON OBTAINING ALASKAN INDEPENDENCE, IF LEGALLY POSSIBLE, OR TO SEEK CHANGES IN EXISTING LAW AND CONSTITUTIONAL PROVISIONS TO AUTHORIZE, AND THEN OBTAIN, INDEPENDENCE.
Be it enacted by the people of the State of Alaska:
(1) At the next regular general election, the following question shall be presented to the voters of the State of Alaska for approval or rejection:
" Shall the State of Alaska obtain independence from the United States of America, and become an independent nation, if such independence is legally possible, and if such independence is not legally possible under present law, shall the State of Alaska seek changes in existing law and Constitutional provisions to authorize such independence, and then obtain independence?"
(2) If this question is not answered affirmatively, then this question shall be placed before the voters of Alaska every ten years in the future.
(3) The provisions of this Act are independent and severable, and if any provision of this Act, or the applicability of any provision to any person or circumstance, shall be held to be invalid by a court of competent jurisdiction, the remainder of this Act

Page 107

shall not be affected and shall be given effect to the fullest extent practicable.

The attorney general's office reviewed the petition application for compliance with the statutes that govern Alaska's initiative process, AS 15.45.030[2] and AS 15.45.040.[3] It advised then-Lieutenant Governor Loren Leman that the initiative did not comply with the constitutional and statutory provisions governing the use of Alaska's initiative process. In its recommendation to the lieutenant governor, the attorney general's office advised that Initiative 03INDP failed because " [t]he initiative may not be used to propose amendments to the Alaska State Constitution" and " the law is clear that a state may not secede from the union." Based on this recommendation, the lieutenant governor declined to certify the initiative petition for circulation.[4]

Kohlhaas appealed to the superior court, arguing that the lieutenant governor was required to certify the initiative for circulation because initiatives that are not clearly unconstitutional may be judicially reviewed only after enactment. Superior Court Judge Sen K. Tan ruled in favor of the State on the ground that secession from the United States is clearly illegal, and Kohlhaas appealed that decision.

In Kohlhaas I, we held that (1) the State may refuse to certify an initiative proposing ends that are clearly unconstitutional; (2) secession from the United States is clearly unconstitutional and therefore an improper subject for the initiative, and thus the State properly rejected the petition proposing the initiative; and (3) because the initiative had not been circulated, possible severance of its unconstitutional portions would not be considered.[5]

B. Initiative 07AKIN and the Current Case

On January 29, 2007, Kohlhaas, Lynette Clark, and Linda Winkelman filed an application with the lieutenant governor's office for an initiative petition calling for Alaskans to vote on seeking changes in existing law and constitutional provisions to authorize secession from the United States. This initiative, known as 07AKIN, differed from the prior initiative in that it did not expressly propose outright secession but instead proposed that the State seek changes in law and constitutional provisions to authorize secession. Its text reads as follows:

AN INITIATIVE REQUIRING THE STATE OF ALASKA TO VOTE ON SEEKING ...

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