Proposing amendments to the Constitution of the State of Alaska relating to revisions of the state constitution and providing that a court may not change language of a proposed constitutional amendment or revision.

Updated: January 28, 2000

Senate Joint Resolution 27 amends Article XIII, sec. 1 of the Alaska State Constitution by making it possible for the legislature to place constitutional revisions as well as amendments before Alaskans for a vote. SJR 27 also adds a new section to Article XIII which would prohibit a court from changing the wording of constitutional amendments or revisions proposed by the legislature or constitutional convention.

The Alaska Supreme Court's August 17, 1999 final decision in Bess v. Ulmer, Case No. 5167, severely weakened the rights of the people of Alaska to amend Alaska's State Constitution. In Bess v. Ulmer the members of the court, for the first time in our state history, removed a legislatively proposed constitutional amendment from the ballot (the Amendment to Limit Prisoners' Rights) and changed the wording of another amendment (the Definition of Marriage Amendment). This decision badly unbalances the constitutional separation of powers in Alaska and destroys a fundamental element in the success of American democracy-the right of the people to amend their constitution. The Bess v. Ulmer decision sets up the members of the Alaska Supreme Court as an elitist oligarchy of lawyers who can dictate to the Alaskan public what constitutional issues they can and cannot vote on.

The Bess v. Ulmer decision, for the first time in Alaska, created a distinction between amendments to the state constitution and revisions to the constitution. An amendment may be proposed by vote of two-thirds of the legislature and take effect after approval by a majority of voters (Art. XIII, sec. 1). An amendment may also be proposed at a constitutional convention and take effect after voter ratification (Art. XIII, sec. 4). A revision may only be proposed by a constitutional convention and take effect after ratification by the voters (Art. XIII, sec. 4). The court, in Bess v. Ulmer, dictated that amendments can only consist of changes that are 'few and simple and independent', whereas revisions are apparently whatever else the members of the court say they are.

The ambiguous nature of these definitions allows the members of the court tremendous latitude as to what constitutional issues Alaskans can and cannot vote on. By usurping the elected legislators' constitutionally granted power to decide whether an amendment is appropriate for the ballot, they actually can and have removed amendments from the ballot, thus taking the power away from the people to amend the people's constitution.

Since statehood, Alaskans have understandably been reluctant to call a constitutional convention due to the uncertainty of what would result. But Alaskans have voted in favor of 24 amendments since statehood. Several of these amendments, such as those concerning the right to privacy and limited entry, clearly do not meet the vague test the court adopted in Bess v. Ulmer. To now force Alaskans to call constitutional conventions to make even single subject changes to their constitution is terrible public policy and bad government. The court action forces Alaskans into an undemocratic, take it or leave it risk of a constitutional convention to make future improvements to our constitution.

The Bess v. Ulmer decision is an outrageous abuse of judicial process. The ultimately decided issues of revision and the court's power to change the wording of a proposed amendment were not noticed as points on appeal or even briefed. The court allowed plaintiffs to raise new arguments/issues in their reply briefs that the defendants were never given the opportunity to respond to. This violates basic due process requirements of both the Alaska and United States Constitutions. The failure of the members of the court to ensure such fundamental and basic fairness in their decision process is truly an outrage.

Additionally, the California case the members of the court primarily relied on as a justification of their revision versus amendment analysis is clearly distinguishable from the facts of the case that was before the court. That California case dealt with a state constitutional amendment proposed by initiative not a legislature and consisted of sweeping wholesale changes to many sections of the California Constitution. This is very different from the legislatively proposed single subject amendment on prisoners' rights the members of our court removed from the ballot.

Even more shocking is that the members of the Alaska Supreme Court have also now assumed the power to actually change the wording of constitutional proposals. In Bess v. Ulmer, the court deleted an entire sentence from the proposed definition of marriage amendment. This is an incredibly dangerous and terrible public policy and the worst kind of political power grab. Under the Alaska State Constitution, the unelected and unconfirmed judges of Alaska do not have the power to make policy that is constitutionally reserved for the elected Governor and Legislature; however, by altering the wording of ballot propositions, that is exactly what the members of the court now claim the power to do.

This creates a situation where a small group of elitist lawyers, who are not elected by the people or confirmed by the people's elected representatives, are dictating whether the people may vote on constitutional amendments and even deciding what ballot propositions say and mean. This is undemocratic and un-American. To our knowledge, in the entire history of the United States no other court has ever before manipulated the wording of a constitutional amendment proposed by a legislature before submitting it to a vote of the people.

Senate Joint Resolution 27 addresses this undemocratic, un-American situation by putting revisions in Article XIII, sec. 1 alongside amendments and making it impossible for the courts to alter or change the language of constitutional amendments or revisions proposed by the legislature or constitutional convention. This would restore the true meaning of these sections of Alaska's State Constitution and return this power to the people of Alaska.

DD/hrn