Bess v. Ulmer - the Supreme Court Stumbles and the Subsistence Amendment Falls

• Citation: Vol. 19
• Publication year: 2002

§ 19 Alaska L. Rev. 295. BESS V. ULMER - THE SUPREME COURT STUMBLES AND THE SUBSISTENCE AMENDMENT FALLS

Alaska Law Review
Volume 19
Cited: 19 Alaska L. Rev. 295

BESS V. ULMER - THE SUPREME COURT STUMBLES AND THE SUBSISTENCE AMENDMENT FALLS

SENATOR DAVE DONLEY, WITH DOUGLAS BAILY, MARA MALLORY,(TED POPELY, AND MATTHEW ROSKOSKI ^{[*] [**] [***] [****] [*****]}

I. INTRODUCTIONII. THE BESS V. ULMER DECISIONIII. THE BESS COURT LACKED THE AUTHORITY TO REWRITE A PROPOSED CONSTITUTIONAL AMENDMENTA. Judicial Alteration of a Proposed Constitutional Amendment Plainly Violates the Alaska ConstitutionB. Judicial Alteration of a Proposed Constitutional Amendment Erodes the Separation of PowersC. The Bess Court's Justification Was InsufficientIV. THE ERRORS OF THE BESS TESTA. Bess's Reliance on the California Cases Was InappropriateB. The Policy Rationales Articulated in Bess Do Not Justify the Restrictive Bess TestC. Bess's Standard is Unclear and ConfusingV. THE BESS RULE BARS RECENTLY PROPOSED SUBSISTENCE AMENDMENTSA. The History of the Alaska ConstitutionB. The Effect of the Subsistence AmendmentVI. ALTERNATIVES TO THE BESS TESTA. An Alternative Hybrid TestB. A Single Subject/No Multifariousness TestVII. CONCLUSION

FOOTNOTES

This Article critiques Bess v. Ulmer, the Alaska Supreme Court decision regarding the distinction between constitutional amendments and revisions. The Article begins by reviewing the holding and reasoning of Bess and argues that the rule articluated by the [*pg 296] court is unfounded. The Article also comments on the court's order severing a portion of a legislatively proposed amendment and argues that this action exceeded the court's authority and infringed upon the separation of powers doctrine. The Article concludes by examining the Bess decision as applied to possible subsistence amendments and by proposing alternatives to the Bess standard for distinguishing between amendments and revisions.

I. INTRODUCTION

The 1999 Alaska Supreme Court decision Bess v. Ulmer ^[1] articulated, for the first time in Alaska, the difference between a constitutional revision and a constitutional amendment. Like most state constitutions in the United States, Alaska's provides two methods of change -- one for amendments and one for revisions. The Bess case was a unique opportunity for the court to create a workable and predictable standard establishing the scope of Alaskans' power to amend their constitution through the legislative process and subsequent popular ratification. After an extensive review of Alaska's constitutional history, out-of-state constitutional jurisprudence, and scholarly discussion, the court adopted a so-called "hybrid" test that set out quantitative and qualitative limits for a constitutional amendment. ^[2] In doing so, the court cast a shadow of confusion and uncertainty over the constitutional horizon -- bewildering Alaskans and mystifying the legislature. By establishing narrow parameters for permissible change by constitutional amendment, the court has effectively precluded the legislature from placing most, if not all, of the recently proposed subsistence amendments on the ballot.

II. THE BESS V. ULMER DECISION

The Bess dispute came before the court as a result of the opposition of several citizens' groups to the placement on the ballot of three controversial propositions to amend the Alaska Constitution. ^[3] Legislative Resolve No. 59 would have limited the rights of Alaska prisoners to those guaranteed by the U.S. Constitution. ^[4] [*pg 297] Legislative Resolve No. 71 limited the constitutional definition of marriage to one man and one woman. ^[5] Finally, Legislative Resolve No. 74 removed from the executive the power to redistrict, and gave that power instead to an independent body. ^[6] The citizens' groups challenged the measures, arguing that "the propositions were revisions not amendments; revisions can only be accomplished through a constitutional convention." ^[7]

There are two paths to constitutional change in Alaska: amendment and revision. ^[8] An amendatory change may be proposed by a two-thirds vote of each house of the legislature. ^[9] The Lieutenant Governor is then charged with preparing a summary of the amendments and placing them on the ballot in the next general election. ^[10] If approved by the majority of the electorate, the amendment is adopted. ^[11] An amendment may also be enacted through a constitutional convention. ^[12] A revision, by contrast, may be enacted only by constitutional convention. This limitation is inferred from the language of article XIII. Section 1 authorizes the legislature to propose amendments, while section 4 provides that a constitutional convention has "plenary power to amend or revise the constitution, subject only to ratification by the people." ^[13] The citizens' groups in Bess argued that article XIII's use of "amend" to describe the legislature's power, and "amend or revise" to describe a convention's power reflected a substantive distinction and meant that the legislature cannot propose revisions. ^[14]

[*pg 298]

The superior court granted summary judgment in favor of the state. ^[15] The citizens' groups appealed, and because the election was rapidly approaching, the supreme court reviewed the decision on an expedited basis. ^[16] The court issued a preliminary order, which struck Legislative Resolve No. 59 (the prisoners' rights measure) as a revision, edited Legislative Resolve No. 71 (the marriage measure) and permitted the changed proposal, and permitted Legislative Resolve No. 74 (the redistricting measure). ^[17] The supreme court later issued a more comprehensive final opinion, drafted by Justice Matthews, in which it explained the reasoning behind its preliminary opinion. ^[18]

As a result of the expedited appeal process, the Bess court made its decision with inadequate briefing. The superior court's ruling did not address whether the prisoners' rights amendment, standing alone, was a revision, and the notice of appeal did not raise the issue. ^[19] The plaintiffs' notice of appeal, filed with the superior court on September 4, 1998, alleged that the superior court erred in finding the proposed marriage amendment constitutional, and also erred in finding that the cumulative effect of all three proposed amendments did not amount to a revision. ^[20] The supreme court's expedited appeal order directed that the appeal would be based primarily upon the briefing filed with the superior court, but permitted supplemental briefing as well. ^[21] Only the plaintiffs' reply brief to the superior court discussed whether the prisoners' rights amendment, standing alone, was a revision. ^[22] The State did not brief this issue in its supplemental brief because the notice of appeal did not raise the issue. ^[23] Plaintiffs did brief the issue, ^[24] however, and the court ruled the prisoners' rights amendment to be a [*pg 299] revision. ^[25] Since both supplemental briefs were due on September 15th, 1998, ^[26] the State did not have an opportunity to reply to the plaintiffs' discussion of this issue in its supplemental brief. Accordingly, the Bess court ruled on the constitutionality of the prisoners' rights amendment (and, in the process, applied the new test and set an example for other courts to follow) without the benefit of adequate briefing on the subject. ^[27]

The supreme court held that the Alaska Constitution did substantively distinguish between amendment and revision. ^[28] In reaching this holding, the court relied primarily upon the Proceedings of the Alaska Constitutional Convention, explaining that the Framers "explicitly contemplated the importance of the differentiation between amendments and revisions and between their respective fields of application." ^[29] One delegate noted the significant difference between "simple" amendments to articles or sections of the constitution and revisions "which [imply] rewriting the constitution." ^[30] The court in Bess thus attributed substantive meaning to the inclusion of both words "amend" and "revise" in section 4 of the constitution:

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. ^[31]

The court developed three policy rationales supporting a vigorous distinction between amendments and revisions. First, the court explained that limiting the amount of constitutional change [*pg 300] protected the stability of Alaska's constitutional regime. ^[32] Second, the court hoped that constitutional conventions would somehow be better equipped than legislatures to consider constitutional changes. ^[33] Finally, the court expressed concern about logrolling and bundling, reasoning that multifarious amendments might "aggregate[] for the measure the favorable votes from electors of many suasions who, wanting strongly enough any one or more propositions offered, might grasp at that which they want, tacitly accepting the remainder." ^[34]

The court concluded that the Framers intended a substantive distinction, but that they did not supply a particularly clear definition of the concepts of "amendment" and "revision." ^[35] Accordingly, the court looked...