Legislature(2021 - 2022)GRUENBERG 120
05/04/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB163 | |
| SB28 | |
| HJR7 | |
| HB73 | |
| HB124 | |
| HB142 | |
| HB5 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 28 | TELECONFERENCED | |
| += | HJR 7 | TELECONFERENCED | |
| += | HB 73 | TELECONFERENCED | |
| *+ | HB 124 | TELECONFERENCED | |
| += | HB 142 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 163 | TELECONFERENCED | |
| += | HB 5 | TELECONFERENCED | |
HB 124-FILLING VACANCY IN LEGISLATURE
3:38:06 PM
CHAIR KREISS-TOMKINS announced that the next order of business
would be HOUSE BILL NO. 124, "An Act relating to filling a
vacancy in the legislature by appointment."
3:38:31 PM
REPRESENTATIVE BEN CARPENTER, Alaska State Legislature, prime
sponsor, introduced HB 124. He noted that the impetus for the
bill developed last summer when former Representative Gary Knopp
passed away. He paraphrased the sponsor statement [included in
the committee packet], which read as follows [original
punctuation provided]:
Currently ambiguity exists in AS 15.40.320 regarding
the time frame and exceptions in filling vacancies
within 30 days.
HB124 clarifies this language pertaining to the
vacancy appointment to the Alaska State Legislature.
Since statehood Alaskan have gone without
representation in this body 21 times for a cumulative
impact of over 1,615 days.
While the current language clearly indicates that
"when a vacancy occurs in the state legislate, the
governor, within 30 days, shall appoint a qualified
person to fill the vacancy." The next sentence
provides exceptions and creates the ambiguity. HB124
look to articulate in a more direct manor and provide
additional guidance as to when.
HB124 adds the additional language "within 30 days
after the vacancy occurs:". This will limit the
requirement to fill the vacancy when it will no longer
be necessary or prudent due to incoming electorates.
HB124 separates for the purpose of clarity language
that only pertains to the other body.
REPRESENTATIVE CARPENTER elaborated that the statute in question
[AS 15.40.320] contained two exceptions and a qualifying
statement to the governor's 30-day appointment requirement. The
first exception, he said, referred to the expiration of the
remainder of the predecessor's term; the second exception
referred to Senate vacancies filled by special election; and the
qualifying statement referred to the legislature meeting,
convening, or reconvening. He maintained that the ambiguity was
based on individual interpretation and whether the qualifying
statement referred to both exceptions. He recalled that
Governor Dunleavy did not appoint a replacement for District 30
[Representative Knopp's district] because he claimed to lack the
authority to make the appointment because the term of office
would have expired before the next legislature met, convened, or
reconvened. He opined that the qualifying statement should only
apply to the second exception, as its impact on the first
exception would negate the first requirement to fill the vacancy
within 30 days. He said it could be argued that the vacancy
appointment provision was intended to ensure representation
during legislative session; however, that interpretation would
"not in the best interest of the people and is counter to our
representative form of government," he contended. He reasoned
that the framers of Alaska's government intended for continuous
representation from each district in the legislature. He
explained that HB 124 would provide clarity by restructuring the
statute and adding the language "within 30 days after the
vacancy occurs:" to communicate that the exception to the 30-day
requirement would only apply to appointments wherein the
predecessor's term would expire within those 30 days. The
additional language would result in a requirement for the
governor to submit a vacancy appointment within 30 days unless
the vacancy occurred within the 30 days preceding the start of
the first session of the new legislature.
3:43:32 PM
RICHARD BEST, Staff, Representative Ben Carpenter, on behalf of
Representative Carpenter, prime sponsor, presented a sectional
analysis of HB 124, which read as follows [original punctuation
provided]:
Amends AS 15.40.320 Condition and time for filling
vacancy by appointment.
Deletes language (line 6-10) If the remainder of the
term of the predecessor in office will expire or if a
vacancy in the state senate will be filled by a
special election before the legislature will next
meet, convene, or reconvene,
Adding language (Line 10) if.
Adding sub-section 1 (line 11-12): The remainder of
the term of the predecessor in office will expire
within 30 days after the vacancy occurs; or.
Adding sub-section 2 (line 13-14): A vacancy in the
state senate will be filled by a special election
before the legislature will next meet, convene, or
reconvene.
3:44:23 PM
REPRESENTATIVE EASTMAN inquired about the bill sponsor's intent
regarding a situation in which an elected legislator resigned in
the last 30 days of his/her term.
REPRESENTATIVE CARPENTER said it would be acceptable to continue
without representation for those 30 days due to the statutory
exception. He believed that HB 124 would provide greater
clarity for such a circumstance. He explained that if HB 124
were to pass, there wouldn't be an appointment within those 30
days and a new legislator who was duly elected would be seated
[to fill the vacancy] "with the process of the new legislature."
3:45:45 PM
REPRESENTATIVE EASTMAN clarified that the scenario he had
envisioned was one in which a new legislator could not be seated
"because the elected legislator is not available - the term of
office, because [indisic.] expire in 30 days, so you're not able
to appoint anyone, so you literally have to wait until the time
expires and then on that first day of the session, you can,
perhaps, then appoint someone." He questioned the benefit of
the 30-day exception.
REPRESENTATIVE CARPENTER supposed that the 30-day exception
would not be necessary if the mechanics of appointments were as
simple as the governor picking a name. However, he contended
that in reality, the process was slow and onerous. He indicated
that the 30-day exception was intended to provide more
flexibility for those unexpected and less-than-ideal scenarios.
3:47:41 PM
REPRESENTATIVE CLAMAN shared his understanding that the 30-day
requirement was a practical timeframe for the governor to gather
and submit names. He reasoned that the governor couldn't be
asked the fill a vacancy if there was only 30 days left. He
asked whether Representative Carpenter agreed with that
analysis.
REPRESENTATIVE CARPENTER concurred. He believed that there
should be no statutory interpretation that would allow the
governor to wait 171 days to submit an appointment, which
occurred in the instance of Representative Knopp's vacancy.
REPRESENTATIVE CLAMAN questioned why someone from Kenai didn't
sue the governor for failing to make an appointment within 30
days after Representative Knopp's passing. He believed that
would have resolved the statutory ambiguity in question.
3:49:11 PM
REPRESENTATIVE CARPENTER was unsure why no one sued the
governor. He surmised that there had been other pressing
matters to attend to regarding the COVID-19 crisis. Further, he
said he represented a conservative district that disliked taking
legal action.
3:49:48 PM
REPRESENTATIVE CLAMAN recalled Representative Carpenter's
earlier statement regarding the "clear intent" from the framers
of Alaska's representational form of government for continuous
representation from each district in the legislature. He asked
where that intent was specified in the framer's document.
REPRESENTATIVE CARPENTER directed attention to AS 15.40.320,
which indicated that the governor shall appoint a qualified
person to fill a vacancy when one occurs in the legislature. He
believed that the statutory language suggested that vacancies
should be filled under normal circumstances. He continued by
emphasizing that since statehood, vacancy appointments had been
delayed 21 times. He believed that when a vacancy lasted longer
than 30 days there was something wrong with the process, as
Alaskans were without representation during that time.
3:52:00 PM
REPRESENTATIVE CLAMAN, returning to statement regarding "clear
intent," sought to verify that Representative Carpenter was
referring to the legislature's intent in passing this statute as
opposed to the framer's intent in drafting the constitution.
REPRESENTATIVE CARPENTER confirmed he was referring to whoever
created the statute.
3:52:31 PM
REPRESENTATIVE CLAMAN informed the committee that the
legislature established the statute in 1960. He referred to a
letter from Legislative Research Services [included in the
committee packet], which contained a table of appointments made
to fill vacancies in the Alaska State Legislature that occurred
more than 30 days after a death or resignation. In these
instances, he asked whether the governor had failed to comply
with the 30-day requirement or whether the governor had
complied, and the legislature had taken longer to fill the
vacancies.
3:53:52 PM
REPRESENTATIVE CARPENTER said there were undoubtedly many
different reasons for delays in the process throughout history.
He clarified that each instance may not have been remedied by
the proposed legislation.
REPRESENTATIVE CLAMAN asked how many times the governor had
failed to meet the 30-day requirement aside form Representative
Knopp's replacement.
REPRESENTATIVE CARPENTER deferred to Mr. Best.
3:55:03 PM
MR. BEST stated explained that the highlighted numbers on the
table indicated that "the governor had appointed somebody and
when they had either accepted or not accepted as well."
CHAIR KREISS-TOMKINS pointed out that based on the provided
information, it would be possible to parse out how many
instances the governor was the dilatory factor.
REPRESENTATIVE CLAMAN opined that regarding data provided by
Legislative Research Services, further analysis of when the
governor had or had not complied with the 30-day requirement
would be helpful.
CHAIR KREISS-TOMKINS agreed. He said the requested information
would provide a better sense of the scope of the precedent.
3:56:43 PM
REPRESENTATIVE TARR pointed out that Representative Knopp's
vacancy occurred during the pandemic. She questioned whether it
was an appropriate example, as pandemic-related factors could
have significantly influenced or hindered the appointment
process.
REPRESENTATIVE CARPENTER believed that the delay was not COVID-
related. Nonetheless, he pointed out that it could be argued
that all decisions made in 2020 were impacted by the pandemic.
He said the proposed legislation would not materially change the
statute; instead, it would clarify that the 30-day requirement
must be followed by the governor unless one of the allowable
exceptions applied. Further, it would specify that an
appointment would not have to be made within 30 days if the
vacancy occurred 30 days prior to session, as the situation
would resolve itself.
3:59:25 PM
REPRESENTATIVE TARR directed attention to the language on page
1, line 10, "the governor may not fill the vacancy if". She
questioned whether the term "may" was the impetus for the
governor's interpretation of the statute. Additionally, she
asked whether "may" should be replaced by "shall" to make the
exemptive language more proscriptive.
REPRESENTATIVE CARPENTER noted that he had asked Legislative
Legal Services the same question regarding "may" versus "shall."
He relayed that the term "may" was adequately prohibitive.
CHAIR KREISS-TOMKINS noted that Megan Wallace, Legislative Legal
Services, was available for questions.
REPRESENTATIVE TARR asked for a legal interpretation of the
sequence of events surrounding Representative Knopp's vacancy.
4:01:17 PM
MEGAN WALLACE, Director, Legislative Legal Services, shared her
understanding that AS 15.40.320 had a long-standing
interpretation that the exception in the existing statute
provided that the governor may not fill the vacancy if the term
of the predecessor would be filled before the legislature meets,
convenes, or reconvenes. Therefore, it was the governor's
similar interpretation that he was prohibited by statute from
filling that vacancy because Gary Knopp's term would have
expired before the legislature met, convened, or reconvened.
She explained that if a special session had been called, for
example, the governor could have made an appointment to fill the
vacancy at that time in preparation for the legislature
convening or reconvening. She added that the statute as
written, was not consistent with the bill sponsor's intent.
Thus, the sponsor's changes to the statute would clarify the
sponsor's intention that the governor make the appointment
within 30 days - the only exception being if the term was set to
expire within 30 days of the next session. She anecdotally
reported that the current interpretation of the existing statute
was that it was intended to potentially prevent the governor
from appointing an incumbent before an election were to occur;
alternatively, if the legislature were not to convene again
before the term expired, the appointee wouldn't be able to sit
on an interim committee or otherwise participate because
appointment to a committee would require action by the body.
REPRESENTATIVE TARR noted that the provision in the constitution
read "a vacancy in the legislature shall be filled for the
unexpired term as provide by law. If no provision is made the
governor shall fill the vacancy by appointment." She opined
that there should not be these reoccurring periods in which
Alaskans are without representation.
4:05:08 PM
CHAIR KREISS-TOMKINS asked whether the bill sponsor had
communicated with the governor's office about the governor's
interpretation of the existing statute around the time of
Representative Knopp's passing.
REPRESENTATIVE CARPENTER answered no.
CHAIR KREISS-TOMKINS asked whether the bill sponsor had
considered it.
REPRESENTATIVE CARPENTER answered no. He pointed out that the
requirement for filling a vacancy was stipulated in both the
constitution and statute; therefore, he didn't feel it necessary
to ask the governor why he had not made the appointment. He
added that the governor's public statements on the matter
sufficed.
4:08:05 PM
MS. WALLACE, in response to a question from Representative
Vance, conveyed that given the long-standing interpretation of
the existing statute, the proposed legislation would clarify the
ambiguity if there was a desire to ensure that the governor made
an appointment within 30 days regardless of when the legislature
would convene or reconvene. In terms of informally polling
members for convening a special session, there would be a
vacancy in that district and the vacant position wouldn't be
polled, she said. She believed that scenario posed by
Representative Vance was not specifically related to the bill.
4:09:59 PM
REPRESENTATIVE VANCE considered a scenario in which there was a
vacancy and the legislature called itself into special session
within one week. She asked whether under existing statute, the
governor would still have to comply with the 30-day requirement
or whether the governor would have to fill that vacancy within
the time that the legislature convened the special session.
MS. WALLACE said that issue was not specifically provided for in
the current statute; however, based on passed precedent, she
presumed that the governor would move quickly to ensure that an
appointment was made before the special session. She explained
that predicting the result of a hypothetical dispute over the
timing before a special session was difficult because the
statute had never been litigated.
4:11:50 PM
CHAIR KREISS-TOMKINS questioned whether Representative Carpenter
had given any thought to the ambiguity in the statutes
pertaining to legislative confirmations.
REPRESENTATIVE CARPENTER explained that in the midst of the
research process, he had identified a previous legislator who
had put forward a similar bill with a broader scope.
Nonetheless, he said given the difficulty of advancing
legislation, the proposed legislation was simplified to one
issue.
CHAIR KREISS-TOMKINS asked which former representative had
proposed similar legislation.
REPRESENTATIVE CARPENTER answered Representative Mark Hodgins
[1997-1998].
4:14:11 PM
REPRESENTATIVE EASTMAN pointed out that Article 2, Section IV,
of the constitution indicated that special sessions may be
called by the governor or by two-thirds of the legislators. HE
sought to clarify whether "of the legislators" referred to
sitting legislators.
MS. WALLACE answered yes. She added that it's likely referring
to two-thirds of all 60 legislators, as opposed to two-thirds of
those whose seats are filled. She recalled that regardless of
whether there was an open seat, a vote would still be calculated
on total membership.
4:15:34 PM
REPRESENTATIVE EASTMAN surmised that the second exception in the
statutory language, which specified that a vacancy in the Senate
would be filled by a special election before the legislature
would next meet, convene, or reconvene, could yield a
significantly longer delay. He questioned whether there was a
way to amend the language to avoid the possibility of having a
250-day vacancy in the Senate.
REPRESENTATIVE CARPENTER supposed that there could be a way to
"tighten" the language; however, it was not something that he
had considered addressing in this bill. Furthermore, as a
member of the House, he said he strayed away from pursuing a
change that would impact the Senate.
4:17:29 PM
REPRESENTATIVE EASTMAN speculated that if vacancies in both the
House and the Senate occurred simultaneously, the governor would
not be able to fill the vacancy in the House due to the "or"
language [at the end of paragraph (1) on page 1, line 12].
REPRESENTATIVE CARPENTER deferred to Legislative Legal Services.
MS. WALLACE asked Representative Eastman to repeat the question.
REPRESENTATIVE EASTMAN remarked:
The operative language on line 10 is 'the governor may
not fill the vacancy [if]' and we're not
distinguishing there whether the vacancy is a House or
a Sente vacancy and then we add qualifying language
about when he cannot fill the vacancy, and we have
option one or option two. ... it would seem to me
that if there is a Senate vacancy which is caught up
under option 2 and we have in that same window of time
a House vacancy, that even though maybe the intent
right now is that the House vacancy wouldn't get
caught up - the 'or' language could potentially mean
that the House vacancy is caught up with the Senate
vacancy.
MS. WALLACE read paragraph one and two as not dependent on one
another. She said if both a House and a Senate vacancy were to
occur at the same time, it would depend on which paragraph was
operable to control the scenario. She surmised that a Senate
vacancy, for example, could fit the parameters of paragraph (1)
and other vacancies could fit the parameters of paragraph (2).
She said the "or" would allow for whichever provision was
applicable to control the circumstances of the vacancy.
4:21:31 PM
REPRESENTATIVE EASTMAN asked whether there was language that
could be introduced to clarify that the language in paragraph
(2) would not allow the governor to neglect filling a vacancy in
the House.
MS. WALLACE said she would be happy to work on that if there was
a desire to clarify the language in question.
REPRESENTATIVE EASTMAN asked whether during the confirmation
process, a vacancy should be filled by the legislators who were
elected at the same as the representative who vacated or whether
there was a benefit to waiting to confirm the appointee by the
next class of legislators.
REPRESENTATIVE CARPENTER acknowledged that under the existing
language, it wasn't clear. He noted that the language in the
proposed legislation would have clarified that if the vacancy
was within the 30 days prior to the start of the next
legislature, the governor would not make an appointment.
Further, whoever was elected come the start of the next
legislative cycle, would fill the vacant seat. He expressed his
hope that HB 124 would clarify any existing ambiguity that had
troubled prior legislatures.
4:26:11 PM
REPRESENTATIVE EASTMAN inquired about limiting the governor's
ability to appoint someone before an election. Alternatively,
if the governor were allowed to make the appointment, he asked
whether it would be valuable to provide the governor with the
discretion to choose not to make the appointment.
REPRESENTATIVE CARPENTER deferred to the constitution. He
opined that representation was of the highest order; therefore,
it did not make sense to him to add statutory language that
would allow the governor not to appoint someone, as every
district should be represented in the legislature.
4:28:56 PM
REPRESENTATIVE VANCE inquired about the procedure for filling a
vacancy left by an unaffiliated member.
MS. WALLACE said that scenario is provided for under statute.
CHAIR KREISS-TOMKINS expressed interest in addressing that
statutory language in a future bill hearing.
4:30:27 PM
CHAIR KREISS-TOMKINS announced that HB 124 was held over.
4:31:00 PM
The committee took an at-ease from 4:31 p.m. to 4:34 p.m.