Saturday, April 01, 2023
This morning I was searching the internet using duckduckgo, and found a case that was new to me.
https://www.ifs.org/cases/alaska-policy-forum-v-alaska-public-offices-commission/
Full Match | Case Name | Case Type | Status | Trial Court Number |
|---|---|---|---|---|
Alaska Policy Forum v. Alaska Public Offices Commission, Yes on 2 for Better Elections, and Protect My Ballot | 204 Appeal | Briefing Stage | 3AN-21-07137CI |
The Alaska Supreme Court is considering a case on disclaimers, and all of the parties are using the wrong standard of review.
So maybe I'll draft a memo that could serve as the basis for an amicus, but then never get around to getting it timely filed; that seems to be my pattern.
Alternatively I could move to intervene.
below are some unorganized notes based on a first reading of some of the briefs.
This case presents, among other issues, the question of whether Alaska's disclaimer statute violates the first amendment.
The case is in a poor posture for the court to focus on this important question.
Appellant is addressing multiple issues specific to their particular case, and has lost sight of the bigger picture.
Appellants has concerns about sufficiency of the evidence, that the commission is acting ultra vires, that the statutes are vague and overbroad. These are meritorious concerns, and they should prevail,
but my concern is that the disclaimer provision will get swept under the rug and not adequately dealt with, with the result that speech in Alaska, and on the internet, will be chilled. A narrowing construction that grants relief for appellant, but appellant only, would be error.
The briefs make no mention of many of the controlling cases, such as Talley, ACLF, Watchtower, Wooley, Tornillo, or Janus, and barely touch on others such as McIntyre.
Plaintiff-Appellant is a corporation, a 501c3, and there is no natural person as a plaintiff, although the unconstitutional statute mainly burdens natural persons.
Plaintiff doesn't seem to be arguing how the statute is facially invalid. It is focusing on the express advocacy loophole that didn't work in McConnell v FEC or Citizens United, although it worked in WRTL, and should work here.
Plaintiff has failed to raise claims under the Alaska constitution, which would be a case of first impression. 13 other states have found disclaimer statutes to violate their state constitutions. Even the respondents found that odd. The cases respondents discuss are not disclaimer cases.
The Alaska constitution protects speech, privacy, and elections. Any of these should be enough to protect the privacy interests of the election speakers here.
I do not have access to an annotated Alaska constitution.
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more notes several days later:
The agency refused to consider plaintiff's constitutional arguments, citing 2007 Alaska PIRG v State.
Administrative agencies do not have jurisdiction to decide issues of constitutional law.43 Delegation to an administrative agency is upheld as long as the administrative tribunal stays within the bounds of its authority.44
But this is error. AK PIRG was a separations of powers case. It is true that adminstrative agencies do not adjudicate constitutional issues between private parties, such as worker compensation disputes between employers and employees. But this does not mean that the aqgency is itself immune from constitutional requirements. Here, the agency acted with deliberate indifference to and reckless disregard for the constitutional rights of plaintiffs. When it did so, it exceeded the bounds of its authority, acted ultra vires, acted tortiously, acted criminally, violated the oath of its members and staff to uphold the alaska and federal constitutions. If some of those members and staff were members of the alaska bar, they violated their ethical obligations as attorneys.
The Alaska Public Offices Commission is not an unlimited monarch with complete control over its subjects. Instead, it is an agency of the state of alaska, which has a constitution. Alaska in turn is also one of the 50 states, and is subject to the federal constitution.*
3 pm 4/3/23.- 3:52 and continuing.
article I § 5. Freedom of Speech
Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
§ 6. Assembly; Petition
The right of the people peaceably to assemble, and to petition the government shall never be abridged.
§ 7. Due Process
No person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.
§ 9. Jeopardy and Self-Incrimination
No person shall be compelled in any criminal proceeding to be a witness against himself.
§ 22. Right of Privacy
The right of the people to privacy is recognized and shall not be infringed.
article V § 3. Methods of Voting; Election Contests
Secrecy of voting shall be preserved.
Article XII –
§ 5. Oath of Office
All public officers, before entering upon the duties of their offices, shall take and subscribe to the following oath or affirmation: “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of Alaska, and that I will faithfully discharge my duties as . . . to the best of my ability.” The legislature may prescribe further oaths or affirmations.
art XII section 9
§ 9. Provisions Self-Executing
The provisions of this constitution shall be construed to be self-executing whenever possible.
Doe v. Department of Public Safety, 444 P.3d 116, 126 (Alaska 2019).
*Fundamental Principles of American Law, McFadden, 85 Calif. L.Rev 1749, 1754.
This is the essence of political speech. As we noted in Alaska Gay Coalition v. Sullivan, 578 P.2d 951 (Alaska 1978), "It is axiomatic that freedom of speech and the correlative freedom of association are fundamental rights which lie at the foundation of our system of government." Messerli.
