Bess v. Ulmer

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 *997also it will bring the judiciary into the reapportionment process in a manner which is potentially highly political. The fact that the very persons whose interests are the most directly affected by this “amendment” are the persons who have brought the issue to the voters by the least restrictive, least impartial, and most politically sensitive process, should not be ignored.

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.1 On the other hand, we conclude that the proposed change regarding reapportionment, which fundamentally redistributes among all three branches of government constitutional power previously held by the chief executive alone, impacts all voters within the state, and restructures the manner by which the voters are grouped together to elect their legislators, is a mere constitutional “amendment” undeserving of the politically impartial deliberation inherent in the constitutional convention process. The irony is remarkable.

. In concluding that Legislative Resolve No. 74 is an "amendment” and not a “revision,” the court observes that "[w]hile the change is an important one, it is simple to express and understand. It is complete within itself, relates to only one subject, and does not substantially affect numerous sections of the constitution.” Except for the "does not substantially affect” phrase, which relates to the numerous constitutional provisions that will be affected, what could be more easily expressed and understood than that the rights of prisoners under the Alaska Constitution shall be limited to those afforded by the Constitution of the United States?