THE STATE

~LASKA

0

Department of Law

GOVERNOR MICHAEL J. DUNLEAVY

CIVIL DIVISION

P.O. Box 110300
Juneau, Alaska 99811
Main: 907.465.3600
Fox: 907 .465.2520

September 26, 2019

Via Email and Hand Delivery
The Honorable Kevin Meyer
Lieutenant Governor
P.O. Box 110015
Juneau, Alaska 99811-0015
Re:

19SEBR Ballot Measure Application Review
AGO No. 2019200644

Dear Lieutenant Governor Meyer:
You asked us to review an application for an initiative bill entitled:
An Act requiring the State of Alaska Department of Education and Early
Development, the State Board of Education and Early Development, and
the University of Alaska to act and make recommendations to ensure that
all students in the State of Alaska receive a quality education. (19SEBR).
We conclude that the application complies with the constitutional and statutory
provisions governing the initiative process, and we recommend that you certify the
application.

I.

The proposed initiative bill.

The bill proposed by this initiative would add duties to the Department of
Education and Early Development (DEED) and the University of Alaska Board of
Regents. 19SEBR contains seven sections and provides as follows:

Section 1 would add a new section to the uncodifled law providing that this act be
known as the "Alaska Students' Educational Bill of Rights."

 Lieutenant Governor Kevin Meyer
Re: 19SEBR Ballot Measure Applications Review

September 26, 2019
Page 2 of7

Section 2 would add a new section to the uncodified law that would list findings
regarding various education provisions in state law and the University of Alaska, and
state that the policy of the State of Alaska is to provide a quality education to students of
all ages.
Section 3 would add a new subsection to DEED's statutory duties under
AS 14.07.020(a). It would require DEED to act and make recommendations relating to
the safety of public schools, access to a high-quality education, voluntary pre-elementary
programs, the salary and benefits of school teachers, class-size, career and technical
education programs, extracurricular activities, culturally-sensitive curricula, proximity of
the school to students' homes, and student social-emotional needs.
Section 4 would require the State Board of Education and Early Development to
adopt regulations to implement Section 3 of the bill.
Section 5 would add a new subsection to the duties and powers of the University
of Alaska Board of Regents under AS 14.40.170(a). The board would be required to
ensure an affordable and accessible education, maintain university facilities, provide
academic programs and educational technology supporting lifelong learning
opportunities, encourage research activities, coordinate with Alaska's schools for teacher
preparation and dual enrollment for students, collaborate with DEED and the Department
of Labor and Workforce Development to prepare students for productive careers, and
provide programs that contribute to Alaska's cultural diversity.
Section 6 states the bill would be effective 90 days after enactment.
Section 7 is a severability clause.
II.

Analysis.

Under AS 15.45.070, the lieutenant governor must review an application for a
proposed initiative bill within 60 calendar days of receipt and "certify it or notify the
initiative committee of the grounds for denial." The application for the l 9SEBR initiative
was filed with the Division of Elections on August 1, 2019. The sixtieth calendar day
after the filing of the initiative is Monday, September 30, 2019.
Under AS 15.45.080, certification shall be denied only if: "(l) the proposed bill to
be initiated is not confined to one subject or is otherwise not in the required form; (2) the
application is not substantially in the required form; or (3) there is an insufficient number
of qualified sponsors."

 Lieutenant Governor Kevin Meyer
Re: 19SEBR Ballot Measure Applications Review

A.

September 26, 2019
Page 3 of7

Form of the proposed initiative bill.

In evaluating an application for an initiative bill, you must determine whether the
application is in the "proper form." 1 Specifically, you must decide whether the application
complies with "the legal procedures for placing an initiative on the ballot, and whether the
initiative contains statutorily or constitutionally prohibited subjects which should not
reach the ballot. " 2
The form of an initiative bill is prescribed by AS 15.45.040, which requires four
things: (1) that the bill be confined to one subject; (2) that the subject be expressed in the
title; (3) that the bill contain an enacting clause stating: "Be it enacted by the People of
the State of Alaska"; and (4) that the bill not include prohibited subjects. The list of
prohibited subjects is found in article XI, section 7 of the Alaska Constitution and
AS 15.45.010. An initiative includes a prohibited subject when it makes or repeals
appropriations; enacts local or special legislation; dedicates revenue; or creates courts,
defines their jurisdiction, or prescribes their rules. 3 You may deny certification only if the
measure violates one or more of these restrictions, or if "controlling authority establishes
its unconstitutionality. " 4
The initiative bill meets all four requirements of AS 15.45.040. It is confined to
one subject-the education of Alaska students. The subject is expressed in the title, and
the bill has the required enacting clause. Finally, it does not include any of the prohibited
subjects and is not clearly unconstitutional under existing authority. Although the bill
would add duties to DEED and the Board of Regents that could ultimately cost money to
implement, the decision whether to fund the additional obligations imposed under this
bill and how to divide up resources among competing priorities would still lie with the

Alaska Const. art. XI, § 2.
2

McAlpine v. Univ. ofAlaska, 762 P.2d 81, 87 n.7 (Alaska 1988).

3

Alaska Statute 15.45.010; see also Alaska Const. art. XI, § 7 (prohibiting
dedicating revenue, creating courts, defining court jurisdiction or prescribing court rules).
4

Kodiak Island Borough v. Mahoney, 71 P.3d 896,900 n. 22 (Alaska 2003).

 Lieutenant Governor Kevin Meyer
Re: 19SEBR Ballot Measure Applications Review

September 26, 2019
Page 4 of7

legislature. 5 Because the initiative bill would not set "aside funds for a particular
purpose," the initiative bill meets the constitutional requirements. 6
We acknowledge that some of the initiative bill's language may be inconsistent
with existing statutes and difficult to implement because of ambiguity in the bill's
language. For example, some of the new duties imposed on DEED include areas that are
statutorily assigned to, and have historically been decided at, the local school district
level. Areas that have been historically handled at the local level include class size,
teacher salaries and benefits, and curricula. Section 3 of the initiative bill, however, states
that DEED shall "implement the state education policy set forth in AS 14.03.015 by
acting and making recommendations" on those same subjects. Read together, the bill's
language could be interpreted to only require that DEED make recommendations on
those matters, but that school districts are left with ultimate authority to decide. But, as
written, it is unclear whether DEED would be required to assume authority over these
areas and adopt regulations establishing standards for each school district-or simply
make recommendations that would inform decisions by each school district.
The bill's language is also very aspirational without concrete requirements. For
example, the bill would require the University of Alaska to "ensure that academic
programs and educational technology, including connectivity among university
campuses, support lifelong learning opportunities for Alaskans in urban and rural
Alaska." But the bill does not explain how this standard would be met, or how the
University would meaningfully ascertain whether it is adequately supporting lifelong
learning. In the case of DEED, it would be required to act and make recommendations to
ensure that "voluntary pre-elementary programs and public schools prepare students to be
good citizens and productive members of society." Whether someone is a productive
member of society can be a fairly subjective question dependent on political
philosophies, geographic location, and sociological factors. It may be difficult for DEED
to adopt a clear regulation defining these terms and setting standards that can be
uniformly applied among all the school districts. DEED and the Board of Regents would
have to grapple with how to satisfy these new and additional duties, while still also
upholding existing, potentially inconsistent, requirements.

5

See Lieutenant Governor ofState v. Alaska Fisheries Conservation Alliance, Inc.,
363 P.3d 104, 108 (Alaska 2015) (recognizing that the two "core objectives" of the
constitutional limitation are "( 1) to prevent give-away programs that appeal to the
self-interest of voters and endanger the state treasury; and (2) to preserve legislative
discretion by ensuring that the legislature, and only the legislature, retains control over
the allocation of state assets among competing needs").
6

McAlpine, 762 P.2d at 88.

 Lieutenant Governor Kevin Meyer
Re: 19SEBR Ballot Measure Applications Review

September 26, 2019
Page 5 of7

Despite this lack of clarity and potential confusion in the bill's text, inconsistency
with existing statutes and ambiguous bill language do not provide grounds to deny
certification of an initiative. As explained above, the initiative bill meets the
constitutional and statutory requirements, and that is all that matters for purposes of
certification of the initiative application.

B.

Form of the application.

The form of an initiative application is prescribed by AS 15.45.030, which
provides that the application must include the
( 1)

proposed bill;

(2)

printed name, the signature, the address, and a numerical identifier
of not fewer than 100 qualified voters who will serve as sponsors;
each signature page must include a statement that the sponsors are
qualified voters who signed the application with the proposed bill
attached;and

(3)

designation of an initiative committee consisting of three of the
sponsors who subscribed to the application and represent all
sponsors and subscribers in matters relating to the initiative; the
designation must include the name, mailing address, and signature
of each committee member.

The application on its face meets the first requirement, as well as the latter portion
of the second requirement regarding the statement on each signature page. With respect
to the first clause of the second requirement, we understand the Division of Elections has
reviewed the sponsor signatures and determined that the application contains the
signatures and addresses of 155 qualified voters. The application also designates three
sponsors to serve on an initiative committee, thus satisfying the third requirement.
Therefore, the application is in the proper form.

III.

Proposed ballot and petition summaries.

We have prepared a ballot-ready petition title and summary to assist you in
complying with AS 15.45.090(a)(2) and AS 15.45.180, as is our office's standard
practice. Under AS 15.45.180, a ballot proposition must include a "true and impartial
summary of the proposed law." That provision also requires that an initiative's title be
limited to 25 words, and that the number of words in the body of the summary be limited
to the number of sections in the proposed law multiplied by 50. "Section" is defined as "a

 Lieutenant Governor Kevin Meyer
Re: 19SEBR Ballot Measure Applications Review

September 26, 2019
Page 6 of7

provision of the proposed law that is distinct from other provisions in purpose or subject
matter."
The bill has seven sections, which would allow the number of words in the
summary not to exceed 350. Below is a summary with 22 words in the title and 123
words in the summary, which we submit for your consideration.
An Act Adding Duties to the Department of Education and Early Development and
the Board of Trustees of the University of Alaska

This act would declare that the State of Alaska must ensure students receive a quality
public education. This act would add duties to the Department of Education and Early
Development and the Board of Regents of the University of Alaska. The department
would have additional duties relating to:
1.
2.
3.
4.
5.
6.
7.
8.
9.

the safety of public schools
access by all children to a high-quality education
voluntary pre-elementary programs
recruitment and retention of teachers
class-size
career and technical education
afterschool activities
culturally-sensitive lesson plans
distance between the school and the students' homes

The Board of Regents would have additional duties relating to:
1.
2.
3.
4.
5.
6.
7.
8.

an affordable and accessible education
maintenance of university facilities
academic programs and educational technology
research activities
teacher preparation
dual enrollment for students
career preparation
cultural diversity
Should this initiative become law?

 Lieutenant Governor Kevin Meyer
Re: 19SEBR Ballot Measure Applications Review

September 26, 2019
Page 7 of7

This summary has a Flesch test score of 40.6. We believe the summary satisfies
the target readability standards of AS 15.80.005.7

IV.

Conclusion.

The proposed bill and application are in the proper fonn and the application
complies with the constitutional and statutory provisions governing the use of the
initiative. We therefore recommend that you certify the initiative application and notify
the initiative committee of your decision. You may then begin to prepare a petition under
AS 15.45.090.
Please contact us ifwe can be of further assistance to you on this matter.

Sincerely,
KEVIN J. CLARKSON
ATTORNEY GENERAL

By:

C
Cori Mills
Assistant Attorney General

7

Under AS 15.80.005(b), "The policy of the state is to prepare a neutral summary
that is scored at approximately 60." While this summary is below the target readability
score of 60, the Alaska Supreme Court has upheld ballot summaries scoring as low as
33.8 for a complicated ballot initiative. See 2007 Op. Att'y Gen. (Oct. 17; 663-07-0179);
Pebble, 215 P.3d at 1082-84. In our view, the duties that would be added by this bill use
tenns of art generally understood by the public that should not be condensed further.