'Robin 0. Brena, Esq. Jon S. Wakeland, Esq. Brena, Bell Walker, RC. 810 Street, Suite 100 Anchorage, Alaska 99501 Telephone: (907) 258-2000 E?Mail: rbrena@brenalaw.com iwakelandEIDbrenalaw.com Attorneys for Plaintiff IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE VOTE YES FOR FAIR SHARE, Plaintiff, V. GOVERNOR OF THE STATE OF ALASKA, and STATE OF ALASKA, DIVISION OF ELECTIONS, Case No. 3AN-I9- 5 ?lb CI I .. KEVIN MEYER, LIEUTENANT Defendants. Vote Yes for Alaska?s Fair Share (?Fair Share?), an Alaska-based nonpro?t organization, by and through counsel, Brena, Bell Walker, P.C., for its complaint against BREM BELL Lieutenant Governor Kevin Meyer (?Meyer?) and the State of Alaska, Division of Elections WALKER, ac. SIONSTREET, SUITE 100 . . . .. . ANCHORAGEAK 995m (?D1v1sron?), complains and alleges as follows: PHONE: (907)258-2000 FAX: 190732534001 - - - - COMPLAINT November 14, 2019 Vote I?esforAZaska ?5 Fair Share v. Meyer, er al. Page I of 12 Case No. CI BRENA. BELL WALKER. RC. 310 STREET, SUITE 100 ANCHORAGE. AK 99501 PHONE: (907)258-2000 {907]258?200l INTRODUCTION The right to propose and enact laws through initiative is a constitutional right of all Alaskans that should not be compromised by Defendant Meyer or any other state of?cial in the conduct of their of?cial duties necessary to advance an initiative to the ballot. Defendant Meyer?s or any other state ontcial?s disagreement with a proposed iaw through initiative should not be permitted to shape the conduct of their of?cial duties. In this case, Defendant Meyer certi?ed the prOposed law, the Fair Share Act, as meeting all of the constitutional and statutory requirements necessary to advance to the ballot. In doing i so, Defendant Meyer?s certi?cation was based, in part, on the opinion of the Attorney General that stated, ?we conclude that the application complies with the constitutional and statutory provisions governing the initiative process.? While Defendant Meyers and the Attorney General agreed that the Fair Share Act met i all the constitutional and statutory requirements to advance to the ballot, they did so to be charitable reluctantly. The Attorney General?s opinion goes beyond assisting Defendant Meyer in determining whether the air Share Act meets the constitutional and statutory requirements to advance to the ballot. Instead, with often contradictory and confused analyses, the Attorney General?s opinion raises and then refuses to opine on several potential, future constitutional and legal issues unrelated to whether the Fair Share Act meets the constitutional and statutory requirements to advance to the ballot. It does so notwithstanding its observation that the Alaska supreme?'Court ?refrain[s] opinions on the Eonstitutionality of COMPLAINT November 14, 2019 Vote Yesfor AZaska ?s air Share v. Meyer, er Page 2 of 12 Case No. 9- CI BRENA, BELL WALKER, P.C. 810 STREET, sums :00 ANCHORAGE, AK 9950i PHONE: (901)255-2000 statutes whether prOposed by the legislature or by the people through their initiative power, I since an opinion on a law not yet enacted is necessarily advisory.? After Defendant Meyer certi?ed the Fair Share Act as meeting all of the constitutional and statutory requirements to advance to the ballot, his primary remaining duty was to prepare Cl (L: gs: S: 1' In ?rs/J ?unannJH'An A 1 A Ion ?anu?nid?JA? L.-. 1p -. 4 nu FLUPUDILJULI. fit.) UPUDltlUll I.) CU 161W Li] a and impartial summary? of the Fair Share Act. This case concerns whether Defendant Meyer met his duty to prepare ?a true and impartial summary? of the Fair Share Act (?Summary?). He did not. Instead, Defendant Meyer?s and the Attorney General?s reluctant certi?cation found clear expression in the. confused and contradictory Summary they have advanced. The essential purpose of the Summary. is to be a true and impartial description of the Fair Share Act, but the Summary . advanced by Defendant Meyer is neither. These actions by Defendant Meyer undercut the initiative rights of Alaskans and should not be countenanced by the courts. The Summary should be corrected to ensure Fair Share?s constitutional and statutory rights associated with the initiative process are not compromised by Defendant Meyer, and the Fair Share Act is truly . and impartially described on the ballot for voters. PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Fair Share is a nonprofit organization of Alaskans across the political spectrum who seek to'ensure that Alaska receives its fair share of the revenues generated by its oil resources; Fair Share is organized under the laws of the State of Alaska-and is in all Ways COMPLAINT November 14, 2019 Vole YesforAZaska?s Fair Share v. Meyer, at Page 3 0f12 Case No. CI BRENA, BELL WALKER. P.C. SID STREET, some 100 ANCHORAGE, AK 9950i (901)250-2000 FAX: (amp-33-2001 action in the superior court to have the determination reviewed within 30 days of the date on qualified to maintain this action. Fair Share?s petition sponsors are Robin 0. Brena, Jane R. Angvika and R. Merrick Pierce. 2. Defendant Meyer is being sued in his official capacity as Lieutenant Governor of the State of Alaska. .u Aiusku WlullIl Lire Office of the .. ULCJIUCLI LII lb CU ??Cllk-?y be? C3 Lieutenant Governor. 4. This 'Court has jurisdiction over this dispute under AS 22.10.020 and AS 15.45.240. 5. Alaska Statute 15.45.240 provides that ?[a]ny person aggrieved by a determination made by the lieutenant governor under AS 15.45.010??15.45.220 may bring an which notice of the determination was given." 6. air Share is an aggrieved person under AS 15.45.240 and may bring suit under Alaska Rule of Civil Procedure 17(b). 7. Defendant Meyer?s determination was sent to the sponsors on October 15, 2019. This Complaint is brought within the required 30 days. 8. Venue is proper under Alaska Rule of Civil Procedure because Defendants may be personally served in the Third Judicial District, and Fair Share is based in Anchorage. COMPLAINT November 14, 2019 Vote Yes/"0r Alaska ?5 Fair Share v. Meyer, er of. Page 4 of 12 Case No. Cl BRENA. BELL WALKER. RC. 8 smear, sums 100 ANCHORAGE, AK 99501 PHONE: (907)253?2000 FACTUAL ALLEGATIONS 9. Fair Share filed its petition application on August 16, 2019. The petition was designated ?An Act relating to the oil and gas production tax, tax payments, and tax credits? (?Fair Share Act?) with 1D 19OGTX. Under AS 15 45.070, Defendant Meyer was required to i '1 within 60 days. 10. Under AS 15.45.080, Defendant Meyer could deny certi?cation only if he determined that 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 inthe required form; or (3) there is an insufficient number of quali?ed sponsors.? 11. Defendant Meyer certified the application on October 15, 2019. - Under AS 15 .45. 1 80(a), Defendant Meyer was required to prepare a ballot title and proposition with the assistance of tire attorney general. The preposition ?shall give a true and impartial summary of the proposed law.? 12. The Summary is contained on page 12 of Attorney General Opinion No. 2019200671 (October 14, 2019) and was sent to Fair Share on October 15, 2019. - Fair Share had no prior notice of the language of "the Summary and found it was not true and impartial as required by AS 13. Following internal review and discussion of the summary, counsel for Fair Share emailed and phoned-counsel for Defendants on multiple occasions from October 18 through I October 21 "seeking'to Correct the Summary. Counsel for Fair Share also Stibmitted a redl?ined version of the Summary indicating the provisions which did not meet the true and impartial COMPLAINT - November 14, 2019 Vote YesforAlas/ca Fair Share Meyer, 81? at. Page 5 of 12 . Case No. CI BRENA. BELL WALKLR, Pic. . are STREET, sums 100 AK 99501 PHONE: (907)253-2tr31 Istandard established by law, along with an offer to reimburse the State for any additional I printing costs associated with correcting the Summary. On October 21, 2019, counsel for Defendants informed Fair Share they would not meet or discuss the Summary with counsel for Fair Share. A 14. Fair Share incorporates each of the preceding paragraphs as though fully set forth herein. 15. Defendant Meyer?s determination to use the Summary for the Fair Share Act is improper as a matter of law. Section 2 (Applicability) of the Fair Share Act 16. 111 relevant part, Section 2 (Applicability) of the Fair Share Act states that its provisions ?only apply to oil produced from fields, units, and nonunitized reservoirs north of 68 degrees north latitude that have produced in excess of 40,000 barrels of oil per day in the previous calendar year and in excess of 400,000,000 barrels of total cumulative oil production? (emphasis added). The use ofthe conjunctive term ?and? in the applicability section of the Fair Share Act makes clear both production thresholds must be met before the its provisions apply. 17. In contrast, the Summary?s description of Section 2 (Applicability) of the Fair Share Act states that ?[t]his act would change the oil and gas production tax for areas of the North Slope where the company produced more than 40,000 barrels of oil per day in the prior year and/0r mere than 4'00'milliori?barrels total. It is unclear whether the area has to meet both" the 40, 000 and 400,000.3ni1250n [sic] thresholds orjusr one of?tem? (emphasis added). COMPLAINT November 14, 2019 Vote YesforAZaska?s Fair Share v. Meyer, 61? Page 6 of 12 Case No. Cl BRENA, BELL 8: WALKER, RC. 810 STREET, SUITE 100 ANCHORAGE, AK 99501 PHONE: (907)253?2000 18. The Summary?s description ofSection 2 (Applicability) of the Fair Share Act is not a true and impartial description because it incorrectly describes the conjunctive term ?and? to mean its opposite, the disjunctive term or something quite different, the combined terms ?and/or.? The Fair Share Act expressly states its terms ?only apply? to areas in which the . ..1.. annual per arrel producti 1 To be true and impartial, the Summary?s description should be corrected to use the term ?and? and to remove the suggestion that ?and? may mean its Opposite or something quite different. 19. The Summary"s description of Section 2 (Applicability) of the Fair Share Act is also not a true and impartial description because it incorrectly describes the ?400 million? barrels of total cumulative oil production threshold as ?400,000 million? barrels of total ,1 cumulative oil production. The Summary?s description of the total cumulative oil production 1 threshold is 1,000 times greater than the one set forth in the Fair Share Act. To be true and impartial, the Summary?s description should be corrected to state the correct quantity of oil associated with the total cumulative oil production threshold. Section 4(b) (Tax on Production Tax Value) of the Fair Share Act 20. In relevant part, Section 1 of the Fair Share Act states, ?the Oil and Gas Production Tax in AS 43.55 shall be amended as follows:? 21. In relevant part, Section 4(b) (Tax on Production Tax Value) of the of the Fair Share Act states ?An additionai production tax shall be paid [when the] Production Tax Value of taxable'o'il is equal to or more" than $50; The additional tax shall be the differenc'e'between the average Production Tax Value of a barrel of oil and $50, multiplied by the volume COMPLAINT November 14, 2019 1 it Vote Yesfor Alaska Fair Share v. Meyer, er Page 7 of 12 Case No. C1 'oi? taxable oil . . . multiplied by 15 percent? (emphasis added). This Section 4(b) of the Fair Share Act simply adds one additional 15 percent progressive bracket at $50 and above of production tax value. 22.- The term ?production tax value? is de?ned under AS 43.55.160. There is only Nothing in Section 4(b) ofthe Fair Share Act?s language suggests in any manner that it repeals this existing 35 percent tax on production-tax value set forth in AS 43.55.01 23. Section 4(b) of the Fair Share Act uses the terms ?additional? tax to describe the tax on production tax value in two separate places. This is because Section 4(b) is an ?additional? tax on production tax value. This obvious conclusion was even noted in the Attorney .General?s opinion which stated, ?The sponsors likely intended for this to be in addition to the existing tax levied contrast, the Summary deletes the term ?additional? when describing the Section additional tax on production tax valve and states that Section 4 ?does not designate what tax is in addition to [sic]. The result is that this tax would likely always be less than the itax above.? This summary is not true and'impartial. 'To state the obvious, there is only one. existing tax on production net value and it is set forth in AS 43.55.01 Me) and as even the Attorney General?s opinion noted, ?The Sponsors likely intended for this to be in addition to BRENA, BELL WALKER. P.the existing tax lev1ed by AS 43.55 .01 ANCHORAGE, AK 99501 PHONE. (907)253?2000 ?90?253'3001 25. Moreover, the Summary deletes?the term assumes, without" supporting language in the Fair Share Act, that the existing tax on production tax value has COMPLAINT November 14, 2019 Vote l?esforAlaska ?5 Fair Share v. Meyer, 62? (.22. Page 8 of 12 1 Case No. C1 BRENA, BELL WALKER, RC. 810 SUITE 100 ANCHORAGE. AK 99501 PHONE: (907)253-2000 somehow been repealed, and the ?additional? tax set forth in Section 4(b) has somehow become the ?only? tax on production tax value. This is the only possible explanation behind the interpretive conclusion in the Summary that the Fair Share Act ?would likely always be less . than? the alternative gross minimum tax under Section 3 of the Fair Share Act. For anyone to interpret percent additional tax on net production value would become the only tax on net production IValue in an initiative designed to increase Alaskans? fair share from the sale of their oil is a strained interpretation at best and certainly is not a true and impartial description of Section 4(b) of the Fair Share Act. The Fair Share Act plainly imposes an additional production tax via amendment without repealing or otherwise altering the existing production tax anywhere in its provisions. The summary should be corrected to reflect what the Attorney General correctly noted as the sponsors? intention of enacting an additional tax via amendment. Section 7 (Public Records) of the Fair Share Act 26. In relevant part, Section '7 (Public Records) of the Fair Share Act states, ?All I ?lings and supporting information provided by each producer to the Department relating to the calculation and payment of taxes set forth in Sections 3 and 4 shall be a matter of public record.? 27. The common meaning of ?matter of public record? in statute and case law is that ?a matter of public record? is not confidential. For example, the relevant tax statute AS 40.25.100(a) provides that ?[i]nformation in'the possessibn of the Department of Revenue that discloses the particulars of the business Or affairs Of a taxpayer or other person is not ti imatter ofpubZz'c record . . . The information s/zaZZ be kept con?dential except when its COMPLAINT November 14, 2019 Vote YesforAlaska ?3 Fair Share v. Meyer, er Page 9 of 12 Case No. 9? Cl BRENA, BELL WALKER. RC. 5 IO smear, SUITE loo ANCHORAGE. AK 99501 morass?2000 FAX: production is required in an of?cial investigation, administrative adjudication or court proceeding? (emphasis added). If a document is a matter of public record, con?dentiality restrictions do not apply. 28. Again, the Attorney General?s opinion correctly states: ??Based on the ?ilotwithstanding language, we assume this provision is intended to supersede the existing statute for'any tax documents submitted for areas falling under section 2 of the initiative bill.? AGO at 6. However, the Attorney General?s opinion goes on to suggest a contradictory and implausible interpretation which it then chooses to include in the Summary. 29. The Summary states: ?The Act would also make all tax documents relating to the- calculation and payment of the new taxes a matter of public record. This would mean the wouid be reviewed under the uormai Public Records Act process, and any information that needed to be ttzidiizeid. for example for privacy or reasons, wouid be withheld? (emphasis added). In the Attorney General?s opinion, it suggests the application of the Public Records Act would mean ?These [con?dential] protections. would likely apply to most, if not all, of the tax documents.? AGO at 6. 30. Section 7 of the Fair Share Act plainly states that the documents ?shall be a matter . of public record,? and the Attorney General has interpreted this phrase to mean there would be no change to the status quo and the tax documents would continue to be confidential. Such an interpretation would render Section 7 of the air Share Act completely meaningless. Sponsors do not often advance initiatives for the purpose'of changing nothing. The Summary is far from a true and impartial description of Section 7 of the Fair Share Act. November 14, 2019 COMPLAINT Page 10 of 12 Vote Yes for A Zaska ?5 Fair Share v. Meyer, er Case No. 9- Cl BRENA, BELL WALKER. P.C. 3:0 STREET, SUITE 100 ANCHORAGE, AK 99501 PHONE: moans?2000 FAX: worms-2001 31. Even assuming, however, the phrase ?a matter of public record? may be subject to varying interpretations in future adjudication, a true and impartial description in the Summary under these circumstances would simply use the actual language of Section 7 and state the tax documents would be ?a matter of public record.? The purpOse of the Summary is to provide a true and it ipainal description, and dis correctior would leave post-adoption arguments Over interpretation of the phrase ?a matter of public record? where they belong-with the courts after adoption and not in the Summary Where they do not belong. PRAYER FOR RELIEF Plaintiff Fair Share requests that the Court grant the following relief: A.Declare that the Lieutenant Governor?s determination that the prepared summary of the Fair Share Act is true and impartial is incorrect as a matter of law; B. Declare that the prepared summary of the Fair Share Act is not true and impartial; C. Issue an injunction requiring the Defendants to correct the prepared summary for I. the ballot with regard to the inaccuracies detailed above (Fair Share shall submit a proposed corrected summary), without requiring recirculation of the initiative in D.Award Fair Share its reasonable costs and attorney?s fees; and E. Grant Fair Share such other relief as the Court deems necessary and proper. COMPLAINT November 14, 2019 Vote YesforAZaska ?5 Fair Shay-'6 v. Meyer, 9? (12. Page ll of 12 Case No. Cl RESPECTFULLY SUBMITTED this 14th day of November, 2019. BRENA, BELL WALKER, P.C. Counsel for Plaintiff ?obi? O. Brena, AlaSka Bar .1 Jo. 8410089 Jon Wakeland, laska Bar No 0911066 Certi?cate of Service I hereby certify that a true and correct copy of the foregoing document was served by mail and e-mail upon the following this 14th day of November, 2019. Attornevs for Defendants . Kevin Meyer Cori Mills Lieutenant Governor of Alaska Assistant Attorney General Alaska Department of Law Alaska Department of Law 1031 West 4th Avenue, Suite 200 1031 West 4th Avenue, Suite 200 Anchorage, AK 9950l? 1994 Anchorage, AK 99501-1994 Km? Clarks?m Gail Fenumiai Attorney General Division of Elections Alaska Department of Law. Court Plaza Building 1031 West 4th AVCHUE, 200 240 Main Street, 4th FIOOF AK 99301-1994 Juneau, AK 99801 - t/ BRENA, BELL myj/Nz?I/din WALKFL, PC. . 100 995le PHONE: (90?,l258?2000 .FAX: (norms-2am .. .. . .. COMPLAINT November 14, 20l 9 Vote Yesfor Alaska ?5 Fair Share v. Mayer, et Page l2 of 12 Case No. CI