PLANNED PARENTHOOD OF ALASKA and Susan Wingrove, Appellants/Cross-Appellees, v. Craig CAMPBELL, in his capacity as Lieutenant Governor of the State of Alaska, Loren Leman, Kim Hummer-Minnery and Mia Costello, Appellees/Cross-Appellants.
Nos. S-13826, S-13835, S-13845.
Supreme Court of Alaska.
June 2, 2010.
232 P.3d 725
Order
IT IS ORDERED:
1. This expedited appeal concerns the question whether deficiencies in an initiative petition summary can ever be cured for a ballot summary without requiring the sponsors to recirculate petitions and gather new signatures. Although this case involves a challenge to the lieutenant governor‘s petition summary for an initiative proposing a parental notification requirement for abortions performed on minors, the question it presents applies to all statewide initiatives whether they relate to abortion notification, mining, hunting, fishing, drug use, or any other proper subject.
2. In 2007 we struck down the Parental Consent Act (PCA),1 which prohibited a doctor from performing an abortion on an unmarried, unemancipated woman younger than seventeen years old without parental consent or judicial authorization.2 We held that the statute violated a minor‘s constitutional right to privacy under the Alaska Constitution.3 However, “we determine[d] that the constitution permits a statutory scheme which ensures that parents are notified so that they can be engaged in their daughters’ important decisions in these matters.” 4
3. On May 6, 2009, Loren Leman, Kim Hummer-Minnery, and Mia Costello (sponsors) submitted an application for an initiative entitled “The Parental Involvement Initiative: An Act relating to parental involvement for a minor‘s abortion” (PNI) to then-Lieutenant Governor Sean Parnell. The PNI would prohibit, in most cases, a doctor from performing an abortion on an unmarried, unemancipated woman younger than eighteen years old without providing notice to—or, alternatively, obtaining consent from—a parent. The PNI is structured as a proposed amendment to the PCA, rather than a stand-alone law.
4. On July 2, 2009, the lieutenant governor certified the sponsors’ application, determining thаt the proposed bill was in the required form, that the application was substantially in the required form, and that there were a sufficient number of qualified sponsors. The lieutenant governor adopted a summary the attorney general had proposed after reviewing the PNI,5 and the Division of Elections prepared petition booklets to be circulated for signature-gathering.
5. On July 31, 2009, Planned Parenthood of Alaska and Susan Wingrove (Planned Par-
6. On March 12, 2010, after the sponsors had submitted the petition with more than the requisite 32,734 signatures, the lieutenant governor determined that the petition was properly filed, contained the requisite signatures, and should therefore appear on the ballot. The lieutenant governor intended to employ the same summary for the ballot that he had used for the petition.
7. On March 16, 2010, the superior court issued its order on the summary judgment motions. It granted summary judgment in part to Planned Parenthood and in part to the lieutenant governor and sponsors, concluding:
that the PNI‘s validation of the PCA is not clearly unconstitutional; that the PNI is understandable by voters; that the PNI unconstitutionally prescribes a limited number of court rules; that the court can sever the offending court prescriptions from the rest of the PNI; and that the summary of the PNI certified by the lieutenant governor is not impartial and accurate but that the summary can be corrected by the lieutenant governor for the ballot and the election pamphlet.
The superior court enjoined the use of the petition summary, identifying three facts the omission of which rendered the summary not impartial and accurate:
1. The PNI would restrict current law, which does not require parental notification before a minor obtains an abortion.
2. The PNI modifies and revalidates the PCA, a prior legislative enaсtment that the Alaska Supreme Court found to be unconstitutional because it did not provide the least restrictive means available to impact the minor‘s fundamental right to privacy. The PNI modifies the PCA by providing for parental notification, the least restrictive means available that meets the state‘s compelling interest in protecting the health of the minor and in fostering family involvement in a minor‘s decision regarding her pregnancy.
3. If adopted, the PNI would implicate other laws that make it a criminal offense (a felony with imprisonment for up to five years) for a physician to knowingly violate the statutory notification provisions for giving the minor‘s parents notice of the minor‘s intent to have an abortion.
The court ruled that if these facts were set out in a revised ballot summary,6 the initiative could be placed on a ballot at the next scheduled election. The court entered final judgment on March 31.
8. All three parties appeal the superior court‘s order. Planned Parenthood appeals the superior court‘s conclusion that the summary can be corrected for the ballot without recirculating a petition with a revised summary for new signatures. The lieutenant governor and the sponsors cross-appeal the superior court‘s conclusion that the summary was not impartial and accurate given the
9. In general, we review “the grant of a summary judgment motion de novo, affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law.” 7 We review the superior court‘s determination regarding the legal sufficiency of a petition or ballot summary de novo.8 But we give deference to the lieutenant governor‘s summary itself; “[i]n reviewing the adequacy of a lieutenant governor‘s ballot summary we apply a ‘deferential standard of review.‘” 9 The same deferential standard applies to our review of a lieutenant governor‘s petitiоn summary.10 “[W]e will not invalidate the summary simply because we believe a better one could be written; instead, ‘the lieutenant governor‘s summary [will] be upheld unless we [cannot] reasonably conclude that the summary [is] impartial and accurate.‘” 11 “In matters of initiative and referendum . . . the people are exercising a power reserved to them by the constitution and the laws of the state, and . . . the constitutional and statuto-
ry provisions under which they proceed should be liberally construed.” 12 “[A]ll doubts as to all technical deficiencies or failure to comply with the exact letter of procedure will be resolved in favor of the accomplishment of that purpose.” 13 In other words, we “preserve [initiatives] whenever possible.” 14 “Those attacking the summary bear the burden ‘to demonstrate that it is biased or misleading.‘” 15 Whether a deficient summary can be “cured” by correcting it for the ballot, but not recirculating the petition, is a question of law.16 We apply оur “independent judgment to questions of law, adopting ‘the rule of law most persuasive in light of precedent, reason, and policy.‘” 17
10. Although we hold petition summaries and ballot summaries to the same standards for accuracy and impartiality,18 there are important differences between the functions served by initiative petition summaries and ballot summaries. “The signature-gathering requirement . . . serves an important screening purpose” 19; it “ensures that only propositions with significant public support are included on the ballot.” 20 The
11. We have noted that omissions, as well as commissions, can render a petition or ballot summary legally deficient.23 “‘The summary need not recite every detail of the proposed measure,’ but ‘if the information would give the elector serious grounds for reflection it is not a mere detail, and it must be disclosed.‘” 24
12. In the present case, we are persuaded that the superior court correctly concluded that the three omissions it identified render the lieutenant governor‘s petition summary inaccurate in the sense that the information, were it to be included in the summary, would give petition signers “serious grounds for reflection.” We are particularly concerned about the summary‘s omission of the fact that the PNI would make a physician‘s violation of its terms a felony 25 punishable by up to five years in prison.26 Both the lieutenant governor and the sponsors argue that the summary gives sufficient
notice that a doctor who violates the PNI would facе legal consequences because the summary mentions a doctor‘s legal defense under the PNI. But the type and severity of legal consequences a doctor might face could reasonably give a voter “serious grounds for reflection.” 27 The lieutenant governor also argues that the punishment is not a main feature of the proposed law because the PNI concerns primarily parents and children; “the doctor‘s role . . . is secondary,” he argues. We are unpersuaded by this argument. The PNI‘s primary enforcement mechanism is the punishment a doctor would face,28 and in that sense it is a main feature of the initiative. The omissions the superior court identified (particularly the first and third omitted facts) are main features of the PNI and should have been disclosed in the petition summary, as the superior court correctly concluded. As we have held, the fact that the summary is deficient for the purposes of the petition means it would also be defiсient for the purposes of the ballot.29
13. We conclude that for any initiative that regulates conduct and creates criminal penalties for a violation of its code of conduct, the petition and ballot summaries must, as a matter of law, describe both the regulated conduct and the penalties.
14. The question in this case is whether a deficient petition summary can ever be corrected for the ballot without recir-
clarified that the presentation to the public must be impartial.35 As we have said, “[t]he public interest in informed lawmaking requires that referendum and initiative petitions meet minimum standards of accuracy and fairness. ‘[O]ur main concern should be that . . . initiative petitions . . . should be presented clearly and honestly to the people of Alaska.‘” 36 To further this goal, an initiative summary must be “a fair, concise, true and impartial statement of the intent of the proposed measure,” 37 “free from any misleading tendency, whether of amplification, of omission, or of fallacy, and . . . must contain no partisan coloring.” 38 The lieutenant governor and sponsors emphasize the importance of the people‘s right to enact laws by initiative; Planned Parenthood emphasizes the importance of the procedures designed to ensure petition-signers are informed and only initiatives with sufficient support reach the ballot. We must consider the people‘s fundamental interests in exercising their constitutional right to initiate legislation 39 and in safeguards ensuring informed lawmaking.40
16. While we have developed a growing body of case law on initiatives, we have never had occasion to examine an initiative in precisely this procedural posture. The petition summary in this case was misleading by omission, rather than commission. Furthermore, this case involves a petition for a statewide initiative, not a petition for a municipal
initiative like those involved in Faipeas44 and Citizens for Implementing Medical Marijuana v. Municipality of Anchorage.45 As such, it is significant that it was the lieutenant governor, acting in accordance with his lawful mandate, who prepared the petition summary.46 As far as the record reveаls, the initiative sponsors had no role in preparing the petition summary and depended entirely on the lieutenant governor to prepare a valid summary in order to advance their initiative to the ballot.
17. Though we have not had occasion to address a case in precisely this procedural posture, we have previously considered a case where the people were permitted to vote on a ballot initiative whose content was modified by the court after concluding that the initiative as originally proposed at the petition stage was legally impermissible. In McAlpine v. University of Alaska, we severed an impermissible appropriation provision from an initiative to establish a separate community college system within state government, allowing the altered initiative to go on the ballot.47 Planned Parenthood argues that severance cases are distinguishable
18. In the severance context we have noted:
[W]hen the requisite number of voters have already subscribed to an initiative, a reviewing court should sever an impermissible portion of the proposed bill when the following сonditions are met: (1) standing alone, the remainder of the proposed bill can be given legal effect; (2) deleting the impermissible portion would not substantially change the spirit of the measure; and (3) it is evident from the content of the measure and the circumstances surrounding its proposal that the sponsors and subscribers would prefer the measure to stand as altered, rather than to be invalidated in its entirety. 50
We have cautioned that “[w]e exercise our power to sever an impermissible section of an initiative ‘circumspectly.‘” 51 Only the second and third factors are readily adaptable to the deficient petition summary context. The second factor would ask whether omitting the
required information from the petition summary substantially changed—or misrepresented—the spirit of the measure. The third factor would ask whether it is evident from the content of the measure and the circumstances surrounding its proposal that the subscribers, fully understanding the proрosal (as if they had been presented a proper summary), would prefer the measure to stand (in other words, go on the ballot), rather than to be invalidated in its entirety. This formulation instructs us to look to the content of the measure and the circumstances surrounding its proposal (the degree to which the summary was defective, for example) in discerning the likelihood and extent of petition-signer inadvertence.
19. Our severance cases also instruct us to look to the hardship that invalidating petition signatures would cause to an initiative‘s sponsors. In McAlpine we noted that invalidating signatures “forces the sponsors to choose between abandoning their efforts altogether and submitting a new application and expending, for the second time, the significant time and effort required to generate public enthusiasm and gather the requisite number of signatures.” 52 This hardship must be balanced against the danger that initiative opponents will be required to respond to an initiativе for which there is insufficient public support:
The signature gathering requirement is important because it eliminates the initiation of an expensive campaign process when there is insufficient public support for an initiative. Neither the state nor the opponents of a proposed bill should be required to spend the large sums of money required when a proposed bill is put on the ballot if there is not sufficient public support for the initiative. 53
21. Although the petition summary in this case was deficient and misleading by omission, it was not as misleading as the petitions in Faipeas58 and Citizens for Implementing Medical Marijuana,59 and petition-signer inadvertence was unlikely or minimal in this case. The petition summary‘s omissions did not substantially misrepresent the essential nature of the PNI.60 Furthermore, like the initiative‘s sponsors in McAlpine, the sponsors here have already expended a significant amount of time and resources to gather all of the required signatures, so the hardship to them would be great were we to invalidate the signatures. Finally, we discern little hardship to the initiative opponents if the corrected summary is allowed to be used as the ballot summary. We agree with the
superior court and conclude that the lieutenant governor may place the PNI on the ballot without requiring the sponsors to recirculate the petition.
22. Provided that the summary is corrected and provided that the PCA 61 and the enforcement provisions implicated by the PNI 62 are made available to the voters along with the PNI,63 we conclude that the integrity of the initiative process, along with our adherence to standards that favor the people‘s right to enact laws by initiative and that favor voters’ rights to be informed about proposed initiative measures, will be maintained.
23. We AFFIRM the superior court‘s order to the extent we have addressed the issues presented in these cross-appeals.64
Entered by direction of the court.
CARPENETI, Chief Justice, and CHRISTEN, Justice, not participating.
WINFREE, Justice, concurring in part and dissenting in part.
WINFREE, Justice, concurring in part and dissenting in part.
1. I agree with the majority that the superior court correctly concluded that omis-
2. The harder question in this case is what happens when a lieutenant governor certifies an initiative and provides a defective petition summary for circulation to potential signers. In a perfect world any questions about a petition summary would be resolved prior to printing and circulating petition booklets for signatures. Because we do not live in a perfect world, a brief chronology will place events in perspective.
3. The initiative application was submitted in May 2009. On July 2 the Department of Law sent a 17-page rеview of the application to the lieutenant governor, recommending approval of the application and proposing the petition summary that is in question.2 That same day the lieutenant governor certi-
fied the initiative, adopted the summary recommended by the Department of Law, and advised the sponsors that they would have one year from the time the petition booklets were printed and made available to them to obtain the necessary signatures to put the initiative on the ballot. It appears that the petition booklets were made available to the sponsors on July 13.
Planned Parenthood filed its motion for injunctive relief on August 14. On August 27 Planned Parenthood and the lieutenant governor filed a stipulation to convert the motion into one for summary judgment. The superior court approved the stipulation on September 10. The sponsors did not move to become a party until September 15, and the court granted that motion on September 29. At that time, the sponsors apparently had over one-third of the necessary signatures to put the initiative on the ballot. The lieutenant governor and the sponsors filed cross-motions for summary judgment, and, as a result of the parties’ scheduling agreements, briefing was finally completed on November 3. At some point thereafter the case was
4. With this chronology in mind I return to my earlier question, now phrased somewhat differently: what happens when a lieutenant governor certifies an initiative and, after the sponsors obtain sufficient petition signatures to place the initiative on the ballot, it is determined that the petition summary used to obtain the petition signatures was defective?
As the majority explains, this question implicates two important but competing policies.4 It is the Alaska Constitution that gives the people the right to “prоpose and enact laws by the initiative,” 5 and public policy requires courts to afford that right great protection.6 But our Constitution also contains a countervailing check and balance.7
Serving as a screening function, an initiative must be presented to the public for a demonstration of sufficient support to allow it to go to the voters on the ballot,8 and the legislature has clarified that the presentation to the public must be impartial.9 Public policy requires courts to honor this screening function to ensure both informed lawmaking and that only initiatives with sufficient public support are allowed on the ballot.10
5. Here the petition was signed by the requisite number of supporters and thus seemingly meets the public support requirement. But the petition contained a summary that failed to meet the disclosure standards necessary for informed lawmaking; the summary was not accurate and impartial. In short, (1) we cannot know for certain that the initiative would have had sufficient support had it been fairly presented to petition signers for “informed lawmaking,” and (2) a strict adherence to the screening function would seem to mandate that the initiative not be allowed on the ballot.11
6. In Faipeas v. Municipality of Anchorage we held that a municipal referendum petition that was not accurate and fair was not “legally acceptable” 12 and, despite enough signatures to demonstrate sufficient public support for the referendum, we stayed the municipal election pending resolution of an appeal of the municipal clerk‘s certification decision.13 Today the majority dissects Faipeas to create a meaningless distinction
The majority begins with the statement in Faipeas that requiring clear and honest petition summaries “is necessary ‘[t]o guard against inadvertence by petition-signers and voters and to discourage stealth by initiative drafters and promoters.‘” 13 Thе majority dissects this into separate categories of “inadvertence” and “stealth,” determines as a matter of law that a lieutenant governor could never be involved in stealth-like conduct, and concludes, therefore, that because this case involves a statewide initiative with a petition summary authorized by the lieutenant governor, the only issue of concern is “inadvertence by petition-signers.” 14
The majority accepts the argument that we can substitute our own view of “informed lawmaking” and “sufficient public support” for the standards set out in article XI, section 3 of the Alaska Constitution and
My view of judicial restraint leaves me unable to agree that a court should entertain this new line of inquiry or create a substitute for what has been to date an express constitutional and statutory standard for determining sufficient public support. I therefore dissent with respect to this issue.
First, it is true that here the summary was prepared by a lieutenant governor based on advice from the Department of Law and there is no question of bad faith or an intent to fool petition signers. But a mistake was made, and both the superior court and this court agree that the mistake rendered the petition summary not accurate and impartial. Whether caused by design or mistake or by a lieutenant governor or sponsors, an inaccurate and biased petition summary is capable of fooling petition signers. Does a superior court now have to find not only that a petition summary was misleading, but also that it was intentionally misleading, to bar an initiative from the ballot? And why should any distinction matter? If a court can cure a misleading petition summary by modifying it for ballot purposes, why isn‘t the inquiry into petition-signer inadvertence and the hardship analysis appropriate in virtually every context of a defective petition summary or defective municipal initiative?
Second, the majority describes a new class of misleading petition summaries—those that are “not . . . misleading” enough to “substantially misrepresent the essential nature” of the initiative and, therefore, in the appropriate case, might not warrant barring the initiative from the ballot.17 My response is that by definition, the petition summaries in this class are not misleading and no judicial intervention of any kind should even be necessary. I agree with Planned Parenthood on this point—a petition summary either meets our existing standards or it does not, and а petition summary cannot fall below those existing standards but be excused because it falls only a little bit below those standards. Once the court determines a petition summary is misleading, as the superior court did and we have done in this case, the inquiry should end.18
After concluding in McAlpine that the initiative included an unconstitutional appropriation,24 we adopted a rule that “when the requisite number of voters have already subscribed to an initiative,” a court should sever the impermissible provisions from the initiative and allow it to go forward to an election if
(1) standing alone, the remainder of the proposed bill can be given legal effect; (2) deleting the impermissible portion would not substantially change the spirit of the measure; and (3) it is evident from the content of the measure and the circumstances surrounding its proposal that the
sponsors and subscribers would prefer the measure to stand as altered, rather than to be invalidated in its entirety.25
Applying that test, we allowed the remaining portion of the initiative to go forward to the election.26 Later, in Alaska Action Center, we determined that a portion of the initiative was unconstitutional, applied the McAlpine test, and concluded that the remaining portion of the initiative bore “little resemblance to the original proposal and should not appear on the ballot.”27
It is true that in this context we consider the subscribing signers’ intent in deciding whether to allow an already screened but subsequently limited initiative to go forward to an election. But it is a giant leap from there to establishing a new rule that we will look to the subscribing signers’ intent in deciding whether to excuse an initiative from the express constitutional and statutory screening process altogether. In my view the analysis and remedy here far exceed those authorized by our precedent.
8. This may be, as the majority notes, the first time this situation has come before us.28 But unless the legislature changes the initiative process to require that initiative challenges be resolved before petitions are circulated for signature, it will not be the last. This situation certainly has arisen and will continue to arise in the municipal initiative context;29 the majority‘s suggestion that somehow the new framework does not apply to municipal initiatives is not persuasive.30
petition summary is “not . . . misleading” enough to “substantially misrepresent the essential nature” оf the initiative, what countervailing factor in the balancing test described by the majority could possibly lead to a conclusion that the initiative should not go on the election ballot?
9. I readily agree that the result I advocate—requiring that a new petitiоn be circulated for signatures—is harsh. It is evident that the sponsors would have obtained sufficient signatures on the petition within the requisite time period even if a fair and impartial summary had been presented in the petition booklets. It is unquestionably unfair that the sponsors should suffer the consequences of a mistake by the Department of Law. But the facts and circumstances of this particular case do not justify the creation of a new legal framework that will lessen incentives for accurate and impartial petition summaries and will change the constitutionally based screening standard from a bright-line rule to the varying views of judges.
The initiative is an important tool for citizen law making. But no initiative should be presented on an election ballot if it has not met the existing constitutional and statutory screening standards. If an initiative petition summary used to gather signatures is not legally acceptable, the initiative should be barred from the ballot and a new petition circulated with an accurate and impartial summary as the Alaska Constitution and
Marvin L. CHARLES Sr., Appellant, v. STATE of Alaska, Appellee.
No. A-10202.
Court of Appeals of Alaska.
June 11, 2010.
Notes
Abortion for minor requires notice to or consent from parent or guardian or judicial bypass
This bill would require notice to the parent or guardian of a female under the age of 18 before she has an abortion. Notice must be received at least 48 hours before the procedure. This waiting period would be waived if a parent or guardian gives consent.
The bill also allows the minor to go to court to authorize an abortion without giving notice to her parent or guardian. The minor could ask the court to excuse her from school to attend the hearings and to have the abortion. The court could direct the school not to tell the minor‘s parent or guardian of the minor‘s pregnancy, abortion, or absence from school.
The bill allows a minor who is a victim of abuse by her parent or guardian to get an abortion without notice or consent. To do this, the minor and an adult relative or authorized official with personal knowledge of the abuse must sign a notarized statement about the abuse.
The bill sets out a doctor‘s defense for performing an abortion without first providing notice or obtaining consent where the minor faces an immediate threat of death or permanent physical harm from continuing the pregnancy. Doctors who perform abortions on a minor would have to submit reports.
Should this initiative become law?
Alaska Const. art. XI, § 1; see alsoIt is noteworthy that the Alaska Constitution was amended not that long ago to make the screening process more stringent—the demonstration of public support for an initiative now must include petition signatures by qualified voters who, in each of at least three-fourths of the