Current Issue

Note From the Editor
PDF

Article

Did the Alaska Supreme Court Get it Right in its Decision in the Alaska Permanent Fund Dividend Case?
Jack Brian McGee
PDF

In 1976, Alaska voters ratified an amendment to Alaska’s constitution that created the Permanent Fund. The amendment required twenty-five percent of certain revenues received by the state be placed in this Fund. In 1980, the Alaska Legislature created the Permanent Fund dividend program. Beginning in 1982, each Alaska resident received an annual dividend in the same amount. The amount of the dividend was automatically determined by a statutory formula. No appropriation was required.

In 2016, the Governor of Alaska vetoed close to one-half of the amount of the annual dividend as calculated by the statutory formula. In subsequent litigation, the Alaska Supreme Court found that a fund utilized by the dividend program was a dedicated fund. And since dedicated funds are prohibited by article IX, section 7 of the Alaska Constitution, the court rejected the claim that the fund was exempt from the prohibition and upheld the governor’s veto. The practical effect of the court’s ruling is that now any income from the Permanent Fund used to pay the yearly dividend to Alaska residents must first be appropriated and, further, is subject to the governor’s veto power.

The central question in the case turned on what is the most likely understanding Alaska voters had of the word “provided” in a single phrase in the 1976 amendment: “except as provided in section 15 of this article.” The Alaska Supreme Court found that the plain language meaning of the word “provided” in the phrase quoted above is to “supply” or “furnish.” Based on this finding, the court concluded the only dedicated fund “supplied” or “furnished” by section 15 is the Permanent Fund itself. The court found this to be the probable meaning Alaska voters had of the “except as provided” phrase.

This Article raises a number of questions about the fundamental premise that underlies the court’s conclusion. For instance, given the context in which “provided” appears in section 7, reading “provided” to mean “supplied” or “furnished” is neither common nor ordinary. A number of other arguments are also discussed in the Article.

Notes

Alaska’s Explicit Right to Privacy Warrants Greater Protection of Alaskans’ Personal Data
Eric Buchanan
PDF

Alaska’s legislature should pass a comprehensive data privacy law to prevent companies’ exploitation of citizens’ personal data. The Alaska Constitution explicitly provides Alaskans with the right to privacy and calls upon the legislature to protect that right. Despite this explicit right, Alaskans’ privacy rights are vulnerable to exploitation by private companies. Proposed legislation to address this vulnerability should ensure data privacy protection, but the legislature should remain cognizant of concerns regarding innovation and business. To best achieve this balance, the legislation should be founded in generally accepted data privacy principles and should establish strong financial penalties for companies that violate the law. The legislation should also be flexible enough to avoid stifling innovation and unreasonably increasing compliance costs. More specifically, the law should allow companies to provide financial incentives to consumers in exchange for permission to collect, use, and share their data. Privacy legislation that meets these goals will effectively protect data privacy, while simultaneously enabling companies to innovate and turn a profit.

The Incomplete Process of Fixing Alaska’s Domestic Violence Protective Order Statute
Samuel R. Buchman
PDF

The Alaska legislature has codified, in section 18.66.100 of the Alaska Statutes, a process through which petitioners can seek a domestic violence protective order. Such an order offers petitioners a range of protections against a household member who has committed a crime of domestic violence. Most of the protections afforded under these orders last one year, and the means by which a petitioner could renew a domestic violence protective order has, until recently, remained unclear. In Whalen v. Whalen , decided in August 2018 by a three to two margin, the Alaska Supreme Court clarified that renewal process. The court held that a petitioner must suffer a new crime of domestic violence before a new domestic violence protective order can be issued. Such a ruling may seem quite harsh, and in fact, shortly thereafter, the legislature amended section 18.66.100 to provide for an extension mechanism and to explicitly reject the notion that a new order must be predicated on a new crime of domestic violence. This Note inspects why the ruling, rather than a harsh judicial construct, was instead a product of the separation of powers and a respect for the limits of the court vis-à-vis the legislature. Further, this Note engages with the legislative history to illustrate the development of the statute. Lastly, this Note collects corresponding statutes from other states and compares them to the current iteration of section 18.66.100. Upon review of similar statutes, it is clear that the Whalen amendment merely addressed an issue that should have never existed in the first place, and there is still much that the legislature can do to build on the Whalen amendment in order to reduce Alaska’s high rates of domestic violence.

The Alaskan Variable: A Call for Education Clause Analysis in School Funding Cases
Sarah Laws
PDF

The provision of public education in Alaska is a task as monumental as the state itself, requiring innovative solutions to unique challenges faced within the state. The drafters of the Alaska Constitution understood this dilemma and granted the state legislature broad power under the education clause. Early supreme court jurisprudence interpreted this mandate broadly and granted considerable deference. However, recent school funding cases have seen the court’s jurisprudence shift to focus on different constitutional provisions and neglect an education clause analysis. The supreme court now has an opportunity to change this. Alaska Legislative Council v. Dunleavy is currently pending before the court and offers the chance to expand on the superior court’s cursory education clause analysis. This Note argues that the court should decide the case under an explicit education clause analysis in order to realign its school funding jurisprudence with the early education clause cases.

Comment

The Need for a Sharpe Appellate Record: Why a Clear and Complete Record on Expert Qualifications is More Important Than Ever
Sarah Laws & Ryan Kuchinski
PDF

In 2019, the Alaska Supreme Court overruled the twenty-year-old precedent established in State v. Coon that limited appellate review of trial courts’ rulings on the validity and admissibility of scientific evidence in a Daubert context. In State v. Sharpe , the court rejected the abuse of discretion standard, instead applying a more stringent de novo review in evaluating the trial courts’ determinations about the reliability of the scientific theory or technique underlying an expert’s testimony. Sharpe arose from three consolidated cases, all of which included evidence from the identical type of polygraph test admitted or excluded based on a single evidentiary hearing on the validity of the polygraph test. These conflicting and arbitrary outcomes demonstrated the real capacity for inconsistencies that appellate courts would not have been able to correct for under the old abuse of discretion standard, highlighting the very concerns raised by the dissent in Coon . Now, under this more stringent appellate standard, it is all the more important for practitioners to develop comprehensive records surrounding scientific evidence. In developing these trial records, practitioners should look to the supreme court’s analysis in Sharpe for guidance on some of the most important factors appellate courts will likely rely on in their review.

Avoiding the Obvious: Plain Meaning and the Endangerment of Alaska’s Hunting Laws in Kinmon v. State
Brendan McGuire & Cormac Bloomfield
PDF

This Comment critiques the court of appeals’ statutory interpretation of Alaska’s hunting laws in Kinmon v. State and proposes legislative reform to correct those judicially created errors. Kinmon arose from a series of hunts between 2009 and 2011 during which nonresident hunters did not pay for their big game tags until after the completion of their hunts. The guide leading these hunts was charged with violating section 16.05.340(a)(15) of the Alaska Statutes, which prohibits nonresidents from hunting big game without “previously purchasing” a big game tag. The Alaska Court of Appeals held in favor of the guide, reasoning that “previously purchasing” was ambiguous and could be understood to permit purchase of a big game tag after a hunt. This reading of the statute is faulty under the plain meaning canon of statutory construction and has deleterious policy implications. To address this error, this Comment proposes a legislative amendment to section 16.06.340(a)(15) of the Alaska Statutes to clarify that “previously purchasing” a game tag requires purchase prior to a hunt.

 

 

Current Issue

Note From the Editor
PDF

Article

Did the Alaska Supreme Court Get it Right in its Decision in the Alaska Permanent Fund Dividend Case?
Jack Brian McGee
PDF

In 1976, Alaska voters ratified an amendment to Alaska’s constitution that created the Permanent Fund. The amendment required twenty-five percent of certain revenues received by the state be placed in this Fund. In 1980, the Alaska Legislature created the Permanent Fund dividend program. Beginning in 1982, each Alaska resident received an annual dividend in the same amount. The amount of the dividend was automatically determined by a statutory formula. No appropriation was required.

In 2016, the Governor of Alaska vetoed close to one-half of the amount of the annual dividend as calculated by the statutory formula. In subsequent litigation, the Alaska Supreme Court found that a fund utilized by the dividend program was a dedicated fund. And since dedicated funds are prohibited by article IX, section 7 of the Alaska Constitution, the court rejected the claim that the fund was exempt from the prohibition and upheld the governor’s veto. The practical effect of the court’s ruling is that now any income from the Permanent Fund used to pay the yearly dividend to Alaska residents must first be appropriated and, further, is subject to the governor’s veto power.

The central question in the case turned on what is the most likely understanding Alaska voters had of the word “provided” in a single phrase in the 1976 amendment: “except as provided in section 15 of this article.” The Alaska Supreme Court found that the plain language meaning of the word “provided” in the phrase quoted above is to “supply” or “furnish.” Based on this finding, the court concluded the only dedicated fund “supplied” or “furnished” by section 15 is the Permanent Fund itself. The court found this to be the probable meaning Alaska voters had of the “except as provided” phrase.

This Article raises a number of questions about the fundamental premise that underlies the court’s conclusion. For instance, given the context in which “provided” appears in section 7, reading “provided” to mean “supplied” or “furnished” is neither common nor ordinary. A number of other arguments are also discussed in the Article.

Notes

Alaska’s Explicit Right to Privacy Warrants Greater Protection of Alaskans’ Personal Data
Eric Buchanan
PDF

Alaska’s legislature should pass a comprehensive data privacy law to prevent companies’ exploitation of citizens’ personal data. The Alaska Constitution explicitly provides Alaskans with the right to privacy and calls upon the legislature to protect that right. Despite this explicit right, Alaskans’ privacy rights are vulnerable to exploitation by private companies. Proposed legislation to address this vulnerability should ensure data privacy protection, but the legislature should remain cognizant of concerns regarding innovation and business. To best achieve this balance, the legislation should be founded in generally accepted data privacy principles and should establish strong financial penalties for companies that violate the law. The legislation should also be flexible enough to avoid stifling innovation and unreasonably increasing compliance costs. More specifically, the law should allow companies to provide financial incentives to consumers in exchange for permission to collect, use, and share their data. Privacy legislation that meets these goals will effectively protect data privacy, while simultaneously enabling companies to innovate and turn a profit.

The Incomplete Process of Fixing Alaska’s Domestic Violence Protective Order Statute
Samuel R. Buchman
PDF

The Alaska legislature has codified, in section 18.66.100 of the Alaska Statutes, a process through which petitioners can seek a domestic violence protective order. Such an order offers petitioners a range of protections against a household member who has committed a crime of domestic violence. Most of the protections afforded under these orders last one year, and the means by which a petitioner could renew a domestic violence protective order has, until recently, remained unclear. In Whalen v. Whalen , decided in August 2018 by a three to two margin, the Alaska Supreme Court clarified that renewal process. The court held that a petitioner must suffer a new crime of domestic violence before a new domestic violence protective order can be issued. Such a ruling may seem quite harsh, and in fact, shortly thereafter, the legislature amended section 18.66.100 to provide for an extension mechanism and to explicitly reject the notion that a new order must be predicated on a new crime of domestic violence. This Note inspects why the ruling, rather than a harsh judicial construct, was instead a product of the separation of powers and a respect for the limits of the court vis-à-vis the legislature. Further, this Note engages with the legislative history to illustrate the development of the statute. Lastly, this Note collects corresponding statutes from other states and compares them to the current iteration of section 18.66.100. Upon review of similar statutes, it is clear that the Whalen amendment merely addressed an issue that should have never existed in the first place, and there is still much that the legislature can do to build on the Whalen amendment in order to reduce Alaska’s high rates of domestic violence.

The Alaskan Variable: A Call for Education Clause Analysis in School Funding Cases
Sarah Laws
PDF

The provision of public education in Alaska is a task as monumental as the state itself, requiring innovative solutions to unique challenges faced within the state. The drafters of the Alaska Constitution understood this dilemma and granted the state legislature broad power under the education clause. Early supreme court jurisprudence interpreted this mandate broadly and granted considerable deference. However, recent school funding cases have seen the court’s jurisprudence shift to focus on different constitutional provisions and neglect an education clause analysis. The supreme court now has an opportunity to change this. Alaska Legislative Council v. Dunleavy is currently pending before the court and offers the chance to expand on the superior court’s cursory education clause analysis. This Note argues that the court should decide the case under an explicit education clause analysis in order to realign its school funding jurisprudence with the early education clause cases.

Comment

The Need for a Sharpe Appellate Record: Why a Clear and Complete Record on Expert Qualifications is More Important Than Ever
Sarah Laws & Ryan Kuchinski
PDF

In 2019, the Alaska Supreme Court overruled the twenty-year-old precedent established in State v. Coon that limited appellate review of trial courts’ rulings on the validity and admissibility of scientific evidence in a Daubert context. In State v. Sharpe , the court rejected the abuse of discretion standard, instead applying a more stringent de novo review in evaluating the trial courts’ determinations about the reliability of the scientific theory or technique underlying an expert’s testimony. Sharpe arose from three consolidated cases, all of which included evidence from the identical type of polygraph test admitted or excluded based on a single evidentiary hearing on the validity of the polygraph test. These conflicting and arbitrary outcomes demonstrated the real capacity for inconsistencies that appellate courts would not have been able to correct for under the old abuse of discretion standard, highlighting the very concerns raised by the dissent in Coon . Now, under this more stringent appellate standard, it is all the more important for practitioners to develop comprehensive records surrounding scientific evidence. In developing these trial records, practitioners should look to the supreme court’s analysis in Sharpe for guidance on some of the most important factors appellate courts will likely rely on in their review.

Avoiding the Obvious: Plain Meaning and the Endangerment of Alaska’s Hunting Laws in Kinmon v. State
Brendan McGuire & Cormac Bloomfield
PDF

This Comment critiques the court of appeals’ statutory interpretation of Alaska’s hunting laws in Kinmon v. State and proposes legislative reform to correct those judicially created errors. Kinmon arose from a series of hunts between 2009 and 2011 during which nonresident hunters did not pay for their big game tags until after the completion of their hunts. The guide leading these hunts was charged with violating section 16.05.340(a)(15) of the Alaska Statutes, which prohibits nonresidents from hunting big game without “previously purchasing” a big game tag. The Alaska Court of Appeals held in favor of the guide, reasoning that “previously purchasing” was ambiguous and could be understood to permit purchase of a big game tag after a hunt. This reading of the statute is faulty under the plain meaning canon of statutory construction and has deleterious policy implications. To address this error, this Comment proposes a legislative amendment to section 16.06.340(a)(15) of the Alaska Statutes to clarify that “previously purchasing” a game tag requires purchase prior to a hunt.

 

 

In This Section: