1999 Guest Article Archive
June 9, 1999 :: AK. STATE SEN. RANDY PHILLIPS August 11, 1999 :: Shelton H. Green September 15, 1999 :: Steve Myers October 2, 1999 :: Nick Begich October 5, 1999 :: AK. STATE SEN. RANDY PHILLIPS Complaint Article :: O'CALLAGHAN V. ULMER
SAVE YOUR DIVIDEND FACT SHEET Shelton H. Green Executive Director, SAVE YOUR DIVIDEND Wasilla, AK
Aug. 11, 1999
BACK TO THE DRAWING BOARD This is the worst of all possible taxes. This tax goes after every man women and child. It is an extreme regressive tax, confiscating at least $360 from each Alaskan - even children. NEW FACTS Since the dividend tax was proposed, the price of oil has shot up and the projected deficit shot down. BP radio ads announce that BP will spend 5 billion over the next five years to find more oil. The bottom line: there is no immediate threat requiring this drastic dividend tax or any new tax. AN ALTERNATIVE Why go after individual dividends while letting billions of public dollars go untouched that are currently used for business loan guarantees from the Alaska Industrial, Development and Export Authority (AIDEA), subsidies from the Alaska Housing Finance Corporation (AHFC), grants from the Alaska Science and Technology Foundation (ASTF) or the Alaska Railroad (ARRC) - all state owned entities? IT'S YOUR MONEY The Permanent Fund Dividend is not free money. It is your money because you are the landowner of Prudhoe Bay. The land is yours; government manages it for you. Government gets taxes, not royalties. The royalty belongs to the individual, the state collects corporate, personal and severance taxes. VOTE YES - KISS THE DIVIDEND GOOD-BYE If you let government take part of your dividend now, all it takes is a simple majority vote of the legislature and the governor‚s signature to take the rest tomorrow. THE BUDGET CUT TO THE BONE, SAY AGAIN? We heard the Governor propose a budget with at least 400 additional employees. The legislature cut the Governor‚s increases, but still state employees increased by more than 150 this year. Real reductions in spending this year appear to be about 1 percent of the general fund budget ($22 million out of $2.3 billion), yet at the time we faced a deficit of nearly 35 percent! Obviously not everything has been done that can be done to reduce state spending. WE HAVE A SPENDING PROBLEM Using traditional taxes - not one-time oil and gas revenue - it is impossible to fuel the current $2.3 billion general fund budget. It would require either a 25 percent state sales tax or a 19 percent state income tax. Get spending down and in line with reality! There should be no talk of taking dividends while state spending is out of whack. THE WORST CHOICE There are many choices that still could be made to address our very real state spending problem. The worst is to take part or all of the individual permanent fund dividend in this way. Vote no on September 14 and politely urge our legislators to go back to the drawing board. ______________________________________
"What we have is a one-party system in Washington that is masquerading as a two-party system, and I think what we need is a real opposition party." Patrick Buchanan, Meet The Press, September 12, 1999 "In the United States, a one-party system disguised as a two-party system has replaced free elections." Exegesis, March 8, 1999 Has the time come to break the mold of America's corrupt two-party system? It has become debilitating to the point of despair. As we wrote a year ago, "as long as Americans are limited to a choice between strong socialism or weak socialism, an increasing number of them will vote by staying home. Neither major party seems willing to offer a way back to limited, constitutional government." Nothing has changed. The American political system has been reduced to a monolithic politburo, in which the nation's founding principles, the Constitution, innovation and excellence are eschewed in favor of a nanny state, an apparently terminal national decline, and a deeply desired mediocrity, primarily because the Elite who rule both parties have no interest in change, principle or individualism. There is only the weakest argument to be made for retaining the status quo. The Elite profits from chaos and drift, while their media distract and entertain the masses with perpetual nothink. America has been seduced into a trivia trance while even those few Republicans who genuinely seek change find themselves trapped in a rigged system. George W. Bush is clearly different from Bill Clinton, but is he different enough? What he seems to be proposing amounts to what Margaret Thatcher called "milk and water socialism", the usual array of watered down big government programs. He can certainly show differences with the Democrats, but they seem marginal compared with the similarities. Does America really need compassionate Conservatism, his father's kinder, gentler nation? Or does it need a thorough legislative spring cleaning to sweep away, once and for all, the unconstitutional bureaucracy that overburdens taxpayers and stifles initiative? If he wants conservative votes, Mr. Bush needs to state boldly that he is very different, that he really means business. Is Mr. Bush suggesting that unqualified conservatism is uncaring? It depends on how you define care, but surely the first act of caring is good stewardship of public time, money and talents. Is it a good use of public money, for example, to devote half the nation's income to subsidizing the other half? Does that help people to help themselves? There are many ways in which Mr. Bush outshines Bill Clinton's grotesque, immoral character and Al Gore's dull liberalism, but if he simply seeks to be a Clinton of the Right, America has had quite enough of that, thank you. Conservative principles of limited, Constitutional government, low taxes, Christian ethics and an end to corporate and personal subsidies do not need to be qualified. They stand solid as a rock. Wouldn't it be glorious to see the prosperous, self-sufficient, well-disciplined nation that would result from their implementation for a few decades? Come to think of it, wouldn't it be a terrific step forward to be allowed the choice to vote for them in a free election? William Rees-Mogg, writing with his usual perceptive pen in The Times of London this week, says that "Americans feel that their federal Government has become too distant and too corrupt, that crooks in high places have taken it away from them." He is right, but can anything be done, and if so, what? The media naysayers confirm beyond doubt that the time is right for a strong third party challenge. Of course, the odds remain firmly in George W. Bush's favor, and we see no reason to change our January 24, 1997 prediction that he will be the next President of the United States. However, those who wish to see a return to a small, low cost government can afford to wait no longer.. If the time is right to challenge the two-party system, how it shall be done and what result should be sought? The end of the system? Electoral Reform? Should a third party seek merely the White House or should they seek to win seats in Congress too? Can such a third party maintain its purity, free from the influence and control of the Elite? There are three principal "third parties" in America: the Libertarian Party, the Reform Party, started by Ross Perot, and the Constitution Party, formerly the US Taxpayers' Party. All have contested elections but, except for Jesse Ventura's gubernatorial victory in Minnesota last year, none has ever won any significant office. Yet can the three parties still afford the luxury of separateness and perceived ideological purity, even if it means that power will never be theirs? Indeed, is there a way in which at least two of them could enter some kind of an alliance to gain a real foothold with voters? In the last Exegesis, we proposed such a possibility: an electoral alliance between the Reform Party and the Constitution Party. As we predicted, Pat Buchanan's imminent defection to the Reform Party will result in a solidly pro-life platform, whatever the preferences of Governor Jesse Ventura. That removes the greatest obstacle in the way of such an alliance. There remain differences, but none as great as those within the Republican Party. As this fascinating scenario develops, perhaps it is time for our friends in the newly renamed Constitution Party to schedule a quiet meeting with Mr. Buchanan. The former US Taxpayers' Party has a wonderful and extensive network of devoted followers. The Reform Party has the financial backing of Ross Perot and will soon have an articulate, nationally-known candidate. If an agreement can be struck, could the Constitution Party's vice-presidential candidate, Joseph Sobran, run on a joint Constitution-Reform ticket with Pat Buchanan? Wouldn't the result be worth a small sacrifice of pride? William Rees-Mogg again: "If voters simply want to clear Clinton and Clintonism out of the White House they can vote for George W. Bush. That would, however, only replace the Democrat establishment with the Republican one." Are enough voters sufficiently disillusioned with the elite to break ranks and vote their consciences? If a Constitution-Reform Alliance came about, it would need a few favors. One helpful favor would be Gary Bauer's eventual endorsement. In 1996, the US Taxpayers' Party was supported by the influential Dr. James Dobson. If he did so again and Gary Bauer joined him, conservatives might find a home at last. There would still be challenges, not the least of which would be to expose the vast amount of electoral fraud and to overcome the establishment media. Nonetheless, when natural allies join forces to combat a single enemy, in this case, the two-party system, they strengthen themselves and their cause. It's a challenge for Ross Perot, Howard Phillips, Pat Buchanan and Joe Sobran to contemplate. Perhaps we may remind them of Edmund Burke's words: "When bad men combine, the good must associate; else they will fall, one by one, an unpitied sacrifice in a contemptible struggle." As all are regular Exegesis readers, we shall await developments with great interest and prayerful patience. Steve Myers
Editor http://www.sm.org/exegesis/ ________________________________________
OUTLINE OF THE POSSIBLITY OF THE STATE ACQUISITION OF ATLANTIC RICHFIELD Prepared by Nick Begich October 2, 1999
The issues surrounding the ARCO/BP merger place Alaskans at a turning point in the evolution of the oil and gas industry in Alaska. Should Alaska allow a single foreign corporation the opportunity to control 72% of the state's oil and gas? The regional development of oil world wide has resulted in the creation of two types of major producers - multinational corporations and government owned oil companies and smaller independent firms. In the course of the last several years I have considered the possibility of what would happen if Alaska, like many third world countries, began to produce its own oil. The third world reached a point in their oil development where they began to cost out the value of owning and controlling oil production, resulting in new marketing alliances with the industry while retaining the bulk of the wealth produced through oil and gas production within their boundaries. It became clear to them that the industry's interests were reflected in their stockholders interests regardless of the advertising campaigns conducted by the industry. Perhaps it is time to consider the economic consequences of a state acquisition of ARCO versus a BP oil monopoly on the state's single greatest income producing asset - our oil. Our relationship with the oil and gas industry has provided Alaska a 12.5% share of royalty oil production and approximately an equal amount in tax revenue. Some other regions of the world have been able to obtain substantially greater shares of their production (in many cases over 50%) while at the same time gaining significant capital investment commitments for producing the oil. WHO OWNS THE OIL? Alaska owns the oil on state land and is entitled to 90% of the federal tax revenues generated from oil on federal land in Alaska according to the Statehood Act. Each person in Alaska has a vested interest in the development of the state's resources not just by virtue of the existence of the Permanent Fund but because fundamentally the citizens are the state of Alaska. Alaskans own the oil as the lessor, as the owner with the industry being our tenant. Our state constitution also mandates that our resources shall be developed in a manner which offers the greatest benefits to all Alaskans. At the time that North Slope oil leases were being sold to industry Alaska was not in a position to produce its own oil. The best use of the resource at that time was to enter into production leases and create a right-of-way for the transportation of oil from the North Slope to Valdez. Alaska is in a much different position now in that we have the economic base to reevaluate our role in oil and gas development in the region. We are in a position, we are at a crossroad, where we can choose to be dominated by the stockholder interests of a foreign corporation - British Petroleum - or we can begin to chart our own course through control of the energy resources owned by Alaska. We can no longer let our tenant dictate the course of development. BUYING ARCO - THE PRICE At the present time British Petroleum (BP) has set a value on all of the world-wide assets of Atlantic Richfield Corporation (ARCO). The Alaska portion of this value could be easily separated from the value of the rest of ARCO's assets. The prorata share of the assets could be valued based on either their income producing history or their depreciated book value or, perhaps, some combination of the two. I believe the value of Alaskan ARCO owned assets would likely range between 7 and 11 billion dollars. THE ASSETS ARCO owns about 22% of the oil pipeline, 30% of current production and 42% of the gas cap on the North Slope. The natural gas ARCO owns is several trillion cubic feet and at present it is not being marketed at all. Additionally, ARCO has already established a complete staff, office complexes and corporate infrastructures needed to operate in Alaska. THE ADVANTAGES OF ACQUISITION Alaska's share of oil and gas moving through TAPs would increase from 12.5% to about 40%. Permanent Fund contributions could increase over 300% above present levels, resulting in significant increases in dividends in the short and long run. The problem then facing Alaskans would change from worrying about the dividends going down to considering at what level we should cap the dividend, if at all, in order to avoid an increasing influx of people from other states. Funds available for the State Operating and Capital Budgets would also increase by a similar factor. These funds could be used for a number of things including building water, sewer, road, railroad, ports and other improvements needed in the long term in Alaska. The State would receive the ARCO share of all oil transportation profits, including those from the operation of the oil pipeline, which over time could repay the State's initial cost of buying the asset in the first place. Another advantage is that as a state owned enterprise the ARCO assets would be exempt from federal corporate taxes which would further increase the profitability of state ownership. In fact, if the state chose to as part of its acquisition plan, it could divert these funds to Municipal Revenue Sharing in order to replace property taxes in Alaska cities and boroughs. At present a movement towards the formation of a Port Authority has begun. This initiative would place ownership of the gas line in the hands of some municipalities and boroughs while it should be more rightly placed in ownership by a state if public ownership is being considered at all. Adding this to the asset mix acquired from ARCO together with the state's existing oil and gas interest in development an incredible set of possibilities emerges. The economic possibilities would put Alaskans in the position to accomplish almost any future vision put forward. The added income to the state from the resources already in production would also change the rate of development of future resources. The pressure to give tax concessions to the industry in exchange for development considerations would end the pressure to develop risky off-shore oil and gas fields would diminish or disappear altogether in the short run and the need to tax citizens would be avoided. Alaskan employment, hire and in-state contracting issues would be resolved. TAXES The idea that Alaskans "pay no taxes" is not true. State revenues are generated by either a direct tax of money from business or individuals or through the sale of Alaskan resources which already belong to the people who reside here by virtue of their state citizenship. The industry-favorable leases and terms of exploitation negotiated with the oil industry has allowed us the opportunity of avoiding state taxation of private persons in favor of a policy of generating revenue from our resource base. This taxing method is being managed in a way which, in my personal opinion, is unfair to all Alaskans. Acquisition offers us the opportunity of maximizing our income from our resources, perhaps putting off the question of direct taxes forever. Over the last fifteen years we settled a number of oil tax, royalty and pipeline disputes with our oil "partners". Those settlements resulted in billions of dollars in savings to the oil industry. Most recently, the Knowles Administration, then entered into other agreements which gave the industry "marginal" oil fields virtually royalty free, generating nothing for the state but the promise of a few jobs. Most of the producing fields in Alaska has been underestimated in terms of size after initial drilling programs. Field size is delineated over time. What incentive is there to delineate a field's size when there is a counter incentive to keep it small? In the coming years additional tax questions will arise for Alaskans. The issue of property taxes will begin to affect Native Corporations which are land based and currently exempt from property taxes. In addition, with the anticipated decreases and perhaps elimination of state municipal revenue sharing, we will be faced with either significant decreases in public services or significant increases in property taxes. The revenue stream produced from the ownership of ARCO could in part be used to eliminate property taxes in Alaska, allowing people to one day truly own their land free off all encumbrances. INDUSTRY TRUST The interest of the oil industry is counter to good public policy in that the industry is accountable first to its stockholders rather than the citizens whose resources they are developing. The Alaska based industry has been a less than good citizen. The pipeline was built on a cost-plus basis with all the costs being assessed against future oil coming through the line. The value of the transportation was based on under- estimated oil reserves. The industry then stalled settling TAPS tariff (shipping costs) disputes until the state knuckled under and agreed to an unfair transportation price. The industry also moved on to take advantage of the tax laws in order to avoid paying the state its fair entitlement resulting in multi-billion dollar losses for the state. The industry then captured new tax concessions resulting in increased profits for them and reduced revenue for the state. What many Alaskans do not consider is that the oil revenue the state gets from its oil is not just effected by the price per barrel but also by the quantity of oil shipped through the pipeline and out of Valdez. The pipeline was designed to ship up to 2 million barrels a day. At present we are shipping 1.3 million barrels per day. The industry can not control the world price of oil but by controlling the shipping and refining they can control the state's income. At the present time a shortage of tankers limits the carrying capacity available for Alaskan crude oil. The ability of a single oil company to constrict the flow of oil and thus the income to the state must be avoided by proper state policing of the industry. COMPETITION Competition between BP and an Alaska owned company could take place. ARCO - Alaska really would represent a partnership with Alaskans and it would be free to compete for the opportunities to develop all of Alaska's oil and gas resources available in the future. It would be a company operated by Alaskans for the interests of Alaskans. The idea the industry has put forward in the past is "if you tax us or change the rules we will go elsewhere," which has been the cry of the oil industry everywhere in the world. Competition between multi-national corporations and a state owned oil company would yield the greatest benefits to all Alaskans. METHOD OF ACQUISITION From my vantage point, the proposals to purchase 72% of TAPS and the Port Authority for building a gas line, while intelligently conceived and meritorious, do not go far enough to protect the public interest. Acquisition of ARCO could take place through a number of possibilities: 1) ARCO-Alaska could be purchased through the use of Alaska Industrial Development Bonds which could be repaid out of the oil revenues and transportation fees. 2) ARCO-Alaska could be purchased by the Permanent Fund. SUMMARY This concept paper has been put forward to stimulate public debate of this important issue. The impacts of the issues surrounding the acquisition of ARCO by BP must include an analysis of the option of state ownership. It is in the public interest that this analysis be carried out and the results presented to the public. We have an opportunity to change the course of our state from one worried about declining revenues at the mercy of a foreign corporation or to create a new vision capable of meeting the challenges we face in the next century. We are the richest region in the world and are being exploited much like a third world colony at a time when we have the resources, talent and capability of rising above the current circumstances and once again gaining control of our state's destiny. ---------- Dr. Nick Begich PO Box 201393 Anchorage, AK 99520 Voice Mail: 907-249-9111 Earthpulse Press DrNick@alaska.net Phone: 907-694-1277 Fax: 907-696-1277 email@example.com www.earthpulse.com Note: This paper will be revised as information is available. This is the second revision based on errors appearing in the first drafts. For those contributing to these revision, thank you.
The Legislature ended its special session on subsistence on Thursday, September 30, after failing to pass House Joint Resolution 202, "Proposing amendments to the Constitution of the State of Alaska relating to subsistence use of wild renewable resources by residents." HJR 202 passed the House by a vote of 28 to 12. It failed to pass the Senate by a vote of 12 - 8. Fourteen votes were needed to pass a constitutional amendment. I voted "no" on the resolution. The following is a chronology of events and other information that lead up to the introduction of House Joint Resolution 202 and subsequently my decision to vote "no." In 1978 the Alaska Legislature passed the State's subsistence law establishing subsistence as the highest priority use of the State's fish and game resources. The law defined subsistence "uses" but not subsistence "users." This law was deemed consistent with Title VIII of ANILCA (the Alaska National Interest Lands Conservation Act), which was passed by Congress in 1980. In 1986 the Legislature amended the 1978 subsistence law by changing the definition of "subsistence uses" to mandate rural residency. This change was found to again be consistent with ANILCA provisions. A challenge to the State's subsistence law was mounted in McDowell v. State of Alaska. In 1989 the Alaska Supreme Court ruled that the rural preference language violated the equal access clause of the State constitution. This meant that Alaska was no longer in compliance with ANILCA and federal law. In 1992 the Legislature made statutory changes to the subsistence law, but they were not enough to bring the state into compliance with the ANILCA provisions. The law provided for a subsistence priority but required identification of areas where no subsistence priority existed. The boards of Fish and Game adopted new regulations which created non-subsistence areas. Several court cases followed. In Katie John v. United States, the U.S. District Court ruled that the definition of public lands must include all navigable Alaskan waters. This decision was appealed, and in April, 1995 was reversed in part. The court ordered federal agencies to identify navigable waters in which the federal government had a reserved water right. In 1994 in Alaska v. Babbitt, the state challenged the federal government's authority to manage subsistence harvests on public lands. The court ruled against the state and a subsequent appeal by the state was withdrawn. Three other lawsuits further defined subsistence law, upholding provisions of the 1992 subsistence law, but striking down the state's Tier II permit provisions. In 1998 the Legislative Council filed suit challenging the Title VIII ANILCA provisions, but the district court dismissed the case, in part finding that the Legislative Council could not bring suit on behalf of the state. In January, 1999 a final rule implementing the provisions in the Katie John lawsuit was issued, to become effective October 1, 1999, unless the legislature passed a resolution to place a constitutional amendment before the voters to provide for a rural priority preference - hence the reason for last month's special session. In 1997, 1998 and 1999 the results of my Legislative Questionnaire clearly showed that the majority of my constituents who responded did not favor the proposed subsistence constitutional amendment. Before, during and after the special session I received calls, e-mails and letters from numerous constituents who encouraged me to continue to oppose the proposed constitutional amendment. In addition to the subsistence issue, the legislature voted to override two of the Governor's vetoes. Senate Bill 74, An Act relating to hunting on the same day airborne, was overriden in a legislative joint session by a vote of 40 - 20. I voted "no." The second bill the legislature considered was Senate Bill 130, An Act relating to immunity for sale or transfer of a firearm; relating to administrative functions performed by and fees changed by the Department of Public Safety for transfer of a firearm." This bill was overridden by a vote of 23 - 17. I voted "yes." If you have questions or comments on any of the above issues, please don't hesitate to contact me. I can be reached at my Eagle River office, telephone 694-4949, or by mail at P. O. Box 142, Eagle River, AK 99577. My e-mail address is: Senator_Randy_Phillips@legis.state.ak.us Thanks to Bill Topel for providing this opportunity to discuss issues of importance to Alaskans.
THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT
ANCHORAGE MICHAEL O'CALLAGHAN, Plaintiff, vs. LIEUTENANT GOVERNOR FRAN
Case No. 3AN-99-8680-CI
The plaintiff is a registered voter in the state of Alaska and has received a dividend check since its inception. The plaintiff seeks to have the Balanced Budget Plan advisory vote (Attachment pp.1-3) withdrawn from the ballot for the following reasons.
ONLY QUESTIONS OF LAW MAY HAVE BALLOT ACCESS.
The constitution empowers the legislature to pass bills that become law. See State Constitution: Section 13, Form of Bills; Section 14, Passage of Bills; Section 17, Bills Not Signed; Section 18, Effective Date; Section 19, Local or Special Acts. An advisory vote creates no law. An advisory vote is merely a resolution and has no authority or characteristic of law. The Alaska Supreme Court provided guidance on this issue. "A'resolution', which cannot be included in initiative proposition, is advisory, an action can only be required by law." Also in the same case the court made clear initiatives had to be in the form of law. " ... is a law rather than a resolution; therefore, such provision can be included in initiative." Yute v. McAlpine, 698 P.2d 1174. This sentiment of resolution or administrative act not being legally on a ballot, for it doesn't have the mandatory effect of a law or act, is reflectedconsistently in all jurisdictions. "Further, legislation on cognate subjects must be construed in pari materia. We know of no statutory provision for a non-binding referendum on municipal or county affairs." Board of Education v. City of Hackensack, 165 A.2d 33, 37. "We determine the non-binding referendum was not here lawfully" Id. P. 37 Actions of a legislative body which are administrative or executive in nature are generally not subject to initiative and referendum. Resolutions and ordinances of municipal bodies, if not in fact legislative, are not subject to referendum. While an enactment which simply puts into execution previously declared policies or previously enacted laws is administrative or executive in character and not referable . "Secretary of state need not submit, under initiative proceeding, something merely calling for opinion on brief, something that would have no characteristics of a law. Proposed initiative measure, consisting of narratives and arguments, containing no mandatory provisions but merely a resolution, held not required to be submitted. The initiative and referendum statute governing city ordinances applies only to legislative ordinances as distinguished from administrative ordinances. White v. Welling, 57 P.2d 702. Clearly only issues which have the effect of law may be placed on our ballot.
THE CONSTITUTION PROHIBITS DEDICATION OF FUNDS
This resolution asks the voters to approve the concept of Alaska Income Account which is a merging of the Constitutional Budget Reserve and the Permanent Fund Earning Reserve Account (see attached House Bill page 2 line 23, and Resolution page 5 line 21). This proposal would violate Article VI, Section 7 of the Alaska Constitution IX Section 7, Dedicated Funds.
BALLOT LANGUAGE IS INCOMPLETE, COMPLICATED AND INCOMPREHENSIBLE
The plaintiff is without language to explain what this resolution does, let alone what it means. It is a public relations person's creation. All fluff and no beef. For a simple example, page 2, paragraph #6, Balanced Budget Task Force. How many people on the Force? Who nominates and confirms? What selection criteria? With what purpose? For how long? To do what? Administrative legislative or judicial oversight or just quasi-state? What's the budget? Who pays? Questions of equal depth could be applied to any paragraph yielding massive ambiguities. Let us look at the 'Question' to be voted upon, page 1 line 14, and page 3 line 3.. Does the 'Question' include the Preamble and Balance Budget Plan, or is the read question the boxes where a voter votes. The second 'Question' is very different from the first. In this case it is impossible to know what it is one is voting on. Can anyone explain what Paragraph #4 means by 'essential public services'? There is no definition. Paragraph #3 guarantees a dividend of $1700 in 1999 and $1700 in 2000. How can this be done with a resolution? There can be no guarantee. The language is absurd. "Thereafter the dividend will be approximately $1,340 and will continue to grow with the value of the Permanent Fund." This statement is a blatant misrepresentation. The dividend in 2001 will be from the AIA, a merged Earning Reserves Account and Constitutional Budget Reserve. (See attached HCR 102 attached pp. 5 lines 21-28.) This would create a corpus of approximately $6.3 billion. When the Permanent Fund was $6.8 billion our dividend was $524. As the Resolution clarifies, on page 5, lines 10 through 14, the dividend will be 50% of this amount or approximately $250.00 Paragraph #7, "Income tax: no personal income tax is enacted as part of this plan." What does this mean? We will never have a personal income tax as long as this budget plan is in effect? Obviously not. The only reason #7 is on our ballot is so the casual voter will look at #7 before they vote and 'No Income Tax' will help win a yes vote. Paragraph #2 also offers an unenforceable guarantee that the Permanent Fund Principle will remain intact. There is no enforcement mechanism to 'guide' the legislature as they choose to change the Fund's principle.This guarantee is not worth the paper it is written upon. Paragraph #1, what does it mean to "commit to long term budget discipline and efficiencies"? This statement is nonsense. Clearly the language is complicated, confusing, misleading and incomprehensible. Justice Moore spoke to the issue of clarity in Yute v. McAlpine, 698 P.2d 1188. "Again our main concern should be that all matters (legislative enactments, initiative petitions and even proposed resolutions) should be presented clearly and honestly to the people of Alaska. As George Orwell once observed: 'A great enemy of clarity is insincerity.' " Again case law mandating clarity of ballot issues is clearly one sided. "A question submitted to the electors of a municipality for their vote must not be misleading, but must be specific, and in all essential particulars in compliance with the requirements of statute or charter." McNichols v. City & County of Denver ex rel. Newton, 209 P.2d 910, 120 Colo. 380. "When a special proposition is submitted to qualified electors for vote, statutes contemplate that recital on ballot shall clearly state substance of proposition." G.S. 1961 Supp. 19-1801; G.S. 1949, 19-1802, Willmeth v. Harris, 403 P.2d 973, 105 Kan. 322. "Where special proposition is submitted to popular vote, recitals on ballot shall clearly state substance of question electors are to vote upon, and election is vitiated, if proposition is so obscurely stated that electors may be misled thereby." Wycoff v. Board of County Comírs of Logan County, 370 P.2d 138, 189 Kan. 557. "Where a special proposition is submitted to a vote of the people, the ballot must clearly state the substance of the proposition, to the end that the voters will not be misled thereby." (Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P.2d 877; Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P.2d 138.) "The legislative policy is that public questions shall be 'presented in simple language that can be easily understood by the voter' and that phrasing of the question 'shall clearly set forth the true purpose of the matter being voted upon.' " N.J.S.A. 19:3-6. And see 82 C.J.S. Statutes, ß 140, p. 247; Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 232-233, 160 A.2d 265 (1960); Botkin v. Mayor and Borough Council of Borough of Westwood, supra (52 N.J. Super., at p. 431, 145 A.2d at p. 626). Cf. The concurring opinion in Guernsey v. Allan, 63 N.J.Super.270, 278, 164 A.2d 496, 500 (App.Div.1960). "The proposition will thus have to be stricken from the ballot for the additional reason that it is not in accordance with the facts and would mislead the voters." 165 ALR.2d 38."The obvious intent of the legislature, in requiring the notice to state the purpose for which bonds are to be issued, was to make certain the question to be voted upon was clearly stated so that the electors would not be misled thereby. Equally important is that the ballot state the purpose with clarity. The fundamental principle running through all the cases is that the election laws contemplate that when a special proposition is submitted to a popular vote, the ballot (as well as the notice) shall clearly state the substance of the question to be voted upon by the electors." The decisions of this court on the subject are extensively reviewed in Unified School District v. Hedrick, 203 Kan. 478, 454 P.2d 536; Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P.2d 138; City of Coffeyville v. Robb, 165 Kan. 219, 194 P.2d 475; Board of Education v. Powers, 142 Kan. 664, 51 P.2d 421; West v. Unified School Dist. No. 346, County of Linn, 460 P.2d 103, 107. "Where a ballot proposal is misleading, the remedy is to void the election." West Shore Community College v. Manistee County Bd. Of Comírs., 205 N.W.2d 441. "Proper concern for protecting ballot requires that voter be informed as to choice being made, or, at absolute minimum, that he not be misinformed by official ballot." Great Northern Ry. Co. v. Flaten, 225 N.W.2d 75. "Doubleness in propositions submitted to voters in bond elections is to be condemned to prevent yoking together of distinct things to the end that the two combined may attract a majority of voters when neither separately might be ableto do so." Henkel v. City of Pevely, 504 S.W.2d 141."Legislative policy is that public questions shall be presented in simple language that can be easily understood by the voter, the referendum shall clearly set forth the true purpose of matter being voted upon." N.J.S.A. 19:3-6. Board of Ed. Of City of Hackensack v. City of Hackensack, 165 A.2d 33. The state of Utah dealt with a similar issue in 1936. "But when the proposed purported law is, as a whole, so incomplete, ambiguous, incomprehensible, or so drawn that it would be completely unworkable or inoperative and its meaning a mere guess, so that, were it to pass, no court, officer, or any other person could make it make sense, it would not then be a law. A combination or an assemblage of words, which are so put together as not to make sense or understanding or so indefinite or lacking in meaning that there would be nothing tangible to reinforce, is not a law nor the semblance of a law. They are utterances without legal meaning. The case where the language of the proposed law is so ambiguous, incoherent, or unintelligible as to make interpretation impossible. That is to say, the secretary of state would not be required, for instance, to submit to the people (a) something merely calling for their opinion or other belief; or (b) something which, if voted on favorably by the people, would not have any of the characteristics or attributes of a law; or (c) something which is so unintelligible, incomprehensible, incoherent, or meaningless that it will not permit of a determination as to whether or not, if passed, it would be a law". See Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656; Brazell v. Zeigler, 26 Okl. 826, 110 P. 1052, White v. Welling, 57 P.2d 702. There is no doubt clarity was not a priority when this 'Advisory' balanced budget resolution was compiled by the legislature/governor.
D. MANDATES SUBSTANTIAL COMPLIANCE WITH THE ELECTION LAW
"Section 1, Advisory Vote. At a special election to be held on September 14, 1999, in substantial compliance with the election laws of the State," (See attached Balanced Budget Plan) The plaintiff's understanding of why the legislature mandated 'Substantial Compliance' is because of the new computer election machines. They passed a body of law that in effect layered the new system's laws with the old computer tabulation section, which created a situation where the Division of Elections simply ignores the sections of the law they wish to ignore and apply that which they wish. They don't follow the law. See 15.20.590 through 740. To mandate substantial compliance is simply unacceptable. Full compliance should be the order of elections.
E. EFFECTIVE DATE
Section 2 of this 'Act', page 3 line 7 mandates this Act take place immediately under AS 01.10.07(c). The procedure the legislature used to make this act effective immediately was not in compliance with Alaska's Constitution, Article II, Section 18, the House Journal shows there was no vote taken to change the enactment date. (See House Journal page 1728, attached page 7). The clause that laws do not become effective, unless a two-thirds vote of the membership of each house provides otherwise, until 90 days after they are enacted, is designed to provide a fair opportunity to those people affected by legislation to learn of the laws they must live by. State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska 1980). Case law clearly shows a vote is necessary. Immediate effecting must fail.
LAW vs. RESOLUTION
This question shows clearly the absurdity of this 'advisory vote'. Can the legislature pass a "law" mandating an advisory vote on a resolution? This 'law' mandates no Act. "A law is a general rule of conduct with appropriate means for its enforcement declared by some authority possessing sovereign power over the subject. It implies command not entreaty;" 160 NE 440l, cited in Yute v. McAlpine, 698 P.2d 1187. The legislature cannot pass a bill or law which has no enforcement or authority.
SINGLE SUBJECT RULE
This act clearly violates the Alaska Constitution "Article II, Section 13. Form of Bills. Every bill shall be confined to one subject." This bill covers many subjects: (1) Permanent Fund Protection, (2) Dividend Check, (3) AIA, (4) Funding for Essential Public Services, (5) Accountability, (6) Balance Budget Task Force, (7) Income Tax. "The primary aim of 'one-subject' provision in state constitution is the restraint of log-rolling in the legislative process." Gellert v. State, 522 P.2d 1120. "The purpose of the constitutional requirement that every bill be confined to one subject is to prevent the inclusion of incongruous and unrelated matters in the same bill in order to get support for it which the several subjects might not separately command, and to guard against inadvertence, stealth and fraud in legislation." Suber v. Alaska State Bond Comm., 414 P.2d 546 (Alaska 1966); Gellert v. State, 522 P.2d 1120 (Alaska 1974). It should be clear to any reader that this proposition is not confined to one subject. It should also be clear to this court that this issue should not be on the ballot for any or all of the aforementioned reasons. Thus I pray the court prohibit this advisory vote from taking place.
Dated this 27 day of July, 1999 at Anchorage, Alaska Michael O'Callaghan
MOTION FOR INJUNCTIVE RELIEF
This advisory vote violates the State of Alaska Constitution by not being a Bill nor being confined to one subject as mandated by Article II, Section 13. Also it violates Article IX, Section 7 by dedicating funds, and Article II Section 18 Effective date. Additionally, the issue is so complicated it defies comprehension. All of the aforementioned causes harm the plaintiff. To be given a ballot which is in clear conflict with the Constitution extinguishes his right to have a ballot free from taint, as does the section mandating substantial compliance with Alaska election law. The plaintiff having litigated these issues needs to see full compliance with election law. Computers have been used to illegally manipulate results in the past and with "substantial compliance" they can be used to skew the results. The plaintiff has voted in Alaska elections for 30 years and he will be clearly harmed if this election is allowed. He prays this court grant a restraining order prohibiting the Lt. Governor from conducting this special election.
Dated this 27 day of July, 1999, at Anchorage, Alaska. Michael O'Callaghan
I, Superior Court Judge __________, hereby restrain the Lieutenant Governor from having a special election September 14, 1999, for the aforementioned reasons and the plaintiffís Motion for Injunctive Relief. Dated: Judge Newport v. Gugel (Ky), 342 SW.2d 517; Seaton v. Lackey, 298 Ky 188, 182 SW.2d 336, Dooling v. Fitchburg, 242 Mass 599, 136 NE 616; Carson v. Oxenhandler (Mo App) 334 SW.2d 394, State ex rel. Ballantyne v. Leeman, 149 Neb 847, 32 NW.2d 918; State ex rel. Hunsicker v. Pulliam, 168 Okla 632, 37 P.2d 417, 96 ALR 1294; Glass v. Smith, 150 Tex 632, 244 SW.2d 645; Keigley v. Bench, 97 Utah 69, 89 P.2d 480, 122 ALR 756; Whitehead v. H & C Development Corp., 204 Va 144, 129 SE.2d 691. Annotation: 122 ALR 769. State ex rel Frank v. Salome, 167 Kan 766, 208 P.2d 198; Monahan v. Funk, 137 Or 580, 3 P.2d 778. Newport v. Gugel (Ky), 342 SW.2d 517; State ex rel. Nelson v. Butler, 145 Neb 638, 17 NW.2d 683; Monahan v. Funk, 137 Or. 580, 3 p.2d 778; Denman v. Quin,, (Tex Civ. App) 116 SW. 2d 783, error ref; Whitehead v. H & C Development Corp., 204 Va 144, 129 SE.2d 691. Annotation: 122 ALR 771.
An additional point about statement D in the original Complaint, page 8, MANDATES SUBSTANTIAL COMPLIANCE WITH ELECTION LAWS: The point is related to the verbiage contained on lines 11 and 12 of SCSCS HB #101 (Attachment page 1 original Complaint) "Notwithstanding AS 15.60.005 and other laws relating to preparation of the ballot proposition." The question is: Does the legislature have the authority to command the Lt. Gov. to ignore a specific law and body of law for a single election? Obviously not. Election must fall on this point alone. The ballot is fundamentally flawed as it is not in compliance with AS 15.60.005 (attached page 1). Its readability is 230-291. Out of legal compliance by almost a factor of three as the law mandates 60. Again showing the ballot is not readable, comprehensible or understandable.
Dated this 27 day of July, 1999, at Anchorage, Alaska.
Michael O'Callaghan Certificate of Service I hereby certify that a copy of the foregoing MEMRANDUM was hand delivered to the State of Alaska AG's office, Anchorage: on 27 July 1999: Mike O'Callaghan
The bill creating this law passed both houses unanimously in 1988.
I am pleased to have the opportunity to contribute to the "Freedom Writer" web site. I will be submitting columns containing information of interest to area residents on a regular basis. If you are interested in a particular topic, let me know, and I will make every effort to find information. LONG RANGE FISCAL PLAN The Legislature adjourned last month after a six-day long special session. During this special session, The House and Senate approved a resolution calling for a public advisory vote on a proposed long-range fiscal plan for Alaska. The House and Senate also passed a bill proposing ballot language for that election, which will be held September 14, 1999. The proposed plan would: Preserve and Protect the Permanent Fund by Preserving the dividend Guaranteeing that the Permanent Fund principal is not touched Guaranteeing that the Permanent Fund principal will be inflation-proofed to protect its value This will be accomplished by: Consolidating the Constitutional Budget Reserve and Permanent Fund Earnings Reserve Account into a new account, to be called the Alaska Income Account. A percentage of the Permanent Fund's annual earnings (5.88%) would be deposited into the Alaska Income Account each year, with half of those deposits going toward dividends. This will guarantee a dividend of at least $1,700 for the next two years. After that, it is estimated that the dividend will be approximately $1,340 and will continue to grow as the balance of the Fund increases in value. When the balance of the Alaska Income Account exceeds 40% of the combined total of the Permanent Fund principle and the Alaska Income account, this excess will be deposited into the principal of the Permanent Fund. This plan does not include the reinstatement of any income tax. The plan will be enacted only if approved by the voters in September. BUDGET The Senate and House Republican Majority started the 21st Alaska State Legislature with a commitment to Alaskans to continue their five-year fiscal plan to reduce state spending. The Legislature honored that commitment to reduce spending by decreasing the state general fund operating budget. Operating Budget The state operating budget is $2.17 billion for FY '00, compared with $2.21 billion for the past fiscal year. While holding the line on state spending, the Legislative Majority was was able to fully fund education and increase funding for the University of Alaska and the Department of Corrections, Public Safety and Health and Social Services. The draw from the Constitutional Budget Reserve (CBR) for FY '00 is expected to be $976.5 million. This is $102 million lower than the draw from the CBR in FY '99. The amount remaining in the CBR is approximately $2.8 billion as of this month. In addition to the $2.17 billion state agency general fund operating budget, another $916.6 million of federal funds will be included in the state operating budget. This is an increase of $52 million in revenue received by the state from the federal government over Fiscal Year '99. Capital Budget The FY '00 capital budget appropriation of $98.5 million of general funds represents a slight increase over last year's budget of $96.3 million. Because of a new 6 year federal transportation bill, Alaska will receive $91 in federal receipts for every $1 general fund contribution. This will result in significant improvements to our highways and transportation systems statewide. During this interim, I can be reached at my Eagle River Legislative office, telephone (907) 694-4949. My mailing address is. P. O. Box 142, Eagle River, AK 99577. Please don't hesitate to call if you have comments or questions. Biography State Senator Randy Phillips Spouse: Norma Education: Graduate, Chugiak High School, 1969; BA Political Science/History, Alaska Methodist University, now Alaska Pacific University, 1973 Self-employed in the marketing/research field since graduation Clients – Providence Health System and Residential Mortgage Elected to the Alaska State House of Representatives, 1976-1992; Alaska State Senate, District L, 1992 – present. In the 21st Alaska State Legislature, serve as vice-chair of the Legislative Budget and Audit Committee and am a member of the Senate Finance Committee, Senate Community Regional Affairs Committee, and the Senate State Affairs Committee. Also am a member of the Joint Task Force on Military Bases Committee. Member of the Elks Club, and am on the Board of Directors of the Alaska Fine Arts Academy. Telephone: Session: (907) 465-4949 or toll free from the Eagle River/Anchorage area at 1-800-478-4950. Interim: (907) 694-4949 Fax (session): (907) 465-4979 Fax (interim): (907) 694-4948 Internet address: Senator_Randy_Phillips@legis.state.ak.us