Thomas v. Rosen

569 P.2d 793, 1977 Alas. LEXIS 408
CourtAlaska Supreme Court
DecidedOctober 7, 1977
Docket3073
StatusPublished
Cited by27 cases

This text of 569 P.2d 793 (Thomas v. Rosen) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Rosen, 569 P.2d 793, 1977 Alas. LEXIS 408 (Ala. 1977).

Opinions

OPINION

BURKE, Justice.

During its second session, the Ninth Alaska State Legislature passed Chapter 124, SLA 1976, which provided for submission to the voters of Alaska a proposition calling for the issuance of general obligation bonds in the amount of $7,100,000.00. The purpose of this act was to pay the costs of constructing regional fire fighting training centers in Anchorage, Fairbanks, Juneau, Kotzebue and Bethel.

On June 30, 1976, Governor Jay Hammond, in a purported exercise of his executive power to strike or reduce items in appropriation bills,1 reduced the bond authorization from $7,100,000.00 to $4,200,-000.00. This action presented the first use of the item veto in Alaska with respect to the amount of bonds authorized and to be voted on pursuant to Article IX, section 8 of the Alaska Constitution.2

Subsequent to the governor’s action, a suit was initiated on August 11, 1976 by David L. Rosen, a taxpayer and registered voter of the State of Alaska, seeking a declaratory judgment and injunctive relief. The declaratory relief sought was a judgment that the governor’s item veto was unconstitutional; injunctive relief was requested to force Lieutenant Governor Lowell Thomas, Jr. to put the proposition on the November 2, 1976, General Election Ballot in the form and with the amount provided for in the legislative enactment before the governor’s item veto. The parties, after entering into a stipulation of facts, filed cross-motions for summary judgment. The lower court, in an order dated August 31, 1976, granted the plaintiff’s motion for summary judgment. Judge Allen T. Compton held that:

Since Chapter 124, SLA 1976, is not an ‘appropriation bill’, Governor Jay Hammond’s attempt to item veto portions thereof, without vetoing the entire bill, is an unconstitutional exercise of powers conferred upon him by the Alaska Constitution and is a nullity. The Act became law without the Governor’s signature, and should be submitted to the electorate in accordance with Article IX, § 8, of the Alaska Constitution, in the form it was enacted by the Ninth Alaska Legislature.

While this appeal was pending, the November 2, 1976, election was held, and we take judicial notice that Chapter 124, SLA 1976, was approved by the electorate in its original form. The election result, although perhaps rendering this controversy technically moot, does not persuade us to decline review on such grounds, since we believe the matter falls under the public interest exception to the mootness doctrine.

This court in Wagstaff v. Superior Court, Family Ct. Division, 535 P.2d 1220, 1226 [795]*795(Alaska 1975), reiterated the “public interest” exception to the mootness doctrine first articulated in In re G. M. B., 483 P.2d 1006, 1008 (Alaska 1971). In G. M. B., we established guidelines for determining when we will hear a matter that normally would be considered moot. We stated:

To invoke the [public interest] exception, a two pronged test must be met: The dispute must be a recurring one, and its nature must be such that the mootness doctrine, if applied, would effectively [preclude review of the issue].3

The case at bar is one of great constitutional moment. It pits the political branches of our state government in a fundamental separation of powers confrontation. Ro-sen urges that the governor’s use of the veto power on proposed bond issues as a method of fiscal control usurps the right of the electorate to approve or disapprove general obligation bonds proposed by the legislature. This argument, coupled with the fact that a challenge to an item veto may not come within sufficient time to fully litigate the matter and that such uncertainty could very well affect the marketability of the state bonds, persuades us that the public interest exception to the mootness doctrine is met.

The controversy before this court can be briefly summarized by utilizing the words of the lower court:

Simply stated, the question before this Court is whether Chapter 124, SLA 1976, is an ‘appropriation bill’ within the meaning of Article II, § 15, of the Alaska Constitution.4

In deciding whether the bond issue authorization constitutes an appropriation, we must first look to the intent of the framers of the constitution. Warren v. Boucher, 543 P.2d 731, 735 (Alaska 1975).

As stated above, section 15 of Article II empowers the governor to use his power of veto to “strike or reduce items in appropriation bills.”5 The constitutional history underlying this provision indicates a desire by the delegates to create a strong executive branch with “a strong control on the purse strings” of the state.6 However, the delegates also appear to have intended to distinguish the appropriation process from debt financing. The following exchange is instructive.

PRESIDENT EGAN: Would the Chief Clerk please read that sentence in Section 8 as it would read if the amendment was adopted.
CHIEF CLERK: ‘No state debt shall be contracted unless authorized for capital improvements by law with ratification by a majority of the qualified voters of the state who vote on the question.’
PRESIDENT EGAN: The question is, ‘Shall the proposed amendment be adopted by the Convention?’ Mr. Lond-borg.
LONDBORG: I would like to ask one question regarding this. If the gover[796]*796nor vetoes this, would that necessitate three-fourths to override that on appropriations?
UNIDENTIFIED DELEGATE: No.7

Some guidance is also found in the Wisconsin Supreme Court’s decision in State ex rel. Finnegan v. Dammann, 220 Wis. 143, 264 N.W. 622, 624 (1936). In that case, the court defined the term “appropriation.”

‘An appropriation is the setting aside from the public revenue of a certain sum of money for a specified object, in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other.’ (citation omitted).

For our purpose, the operative phrase “public revenue” is critical since it is the basis of the general fund and special funds from which the legislature may allocate money. See State ex rel. Bonner v. Dixon, 59 Mont. 58, 195 P. 841, 845-46 (Mont.1921). Thus, any time the legislature allocates monies from the general8 fund or special funds, the governor’s line item veto would be appropriate. However, the sale of general obligation bonds is the commitment of the state to a debtor relationship with those who purchase the bonds, and is therefore distinguishable from such allocations.

The contracting of state debt is governed by the Alaska Constitution which provides in Article IX, section 8:

State Debt.

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Bluebook (online)
569 P.2d 793, 1977 Alas. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-rosen-alaska-1977.