Legislature(1999 - 2000)
04/17/2000 02:05 PM House FIN
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SENATE JOINT RESOLUTION NO. 27 am
Proposing amendments to the Constitution of the State
of Alaska relating to revisions of the state
constitution and providing that a court may not change
language of a proposed constitutional amendment or
revision.
Co-Chair Therriault provided members with proposed committee
substitute, work draft 1-LS0078\N, 4/11/00 (copy on file).
SENATOR DAVE DONLEY, SPONSOR spoke in support of the
legislation. He noted that SJR 27 amends Article XIII, sec.
1 of the Alaska State Constitution by making it possible for
the legislature to place constitutional revisions as well
as amendments before Alaskans for a vote. SJR 27 also adds a
new section to Article XIII, which would prohibit a court
from changing the wording of constitutional amendments or
revisions proposed by the legislature or constitutional
convention.
Senator Donley maintained that the legislation corrects the
problem created by Bess v. Ulmer. The Bess case was a
challenge to the proposed constitutional amendment on the
definition of marriage, approved in 1998. On appeal the
Supreme Court ruled that the legislature is not able to do
revisions to the Constitution and adopted a test for
revisions. He maintained that the test of "revision" is
onerous. He observed that the state constitutional
convention debated the definition of revision to no avail.
Senator Donley noted that the Court based its decision in
part on a initiative to the state of California's
Constitution. He argued that the California initiative was
more substantial. The Court removed a legislatively proposed
constitutional amendment from the ballot on the Amendment to
Limit Prisoners' Rights and changed the wording of the
Definition of Marriage Amendment. He maintained that there
is no legal precedent for a court to modify language of a
constitutional amendment proposed by elected legislators
before it was placed on the ballot for a vote of the people.
He maintained that the court should not propose
constitutional amendments.
The proposed committee substitute would allow the
legislature to do revisions, but revisions would have to be
on a single subject. This would be consistent with the
existing constitutional provision for legislation.
Senator Donley provided members with a memorandum, Analysis
of Bess v. Ulmer - Revisions vs. Amendments dated 4/11/00
from legislative counsel (copy on file). He quoted page 7.
Senator Donley observed that there have been other
constitutional amendments, which would not have met the Bess
test. He maintained that the right to privacy and limited
entry amendments would have failed the Bess test. He added
that the question of subsistence would also fail under the
Bess test because of the number of provisions affected under
the Constitution, even though it is a single subject. He
concluded that without the legislation everything done on
the constitutional realm comes into question.
Vice Chair Bunde MOVED to ADOPT work draft 1-LS0078\N,
4/11/00. There being NO OBJECTION, it was so ordered.
DALE BONDURANT, KENAI testified via teleconference in
opposition to the legislation. He maintained that
constitutional amendments are affected by politics. He
maintained that court are not as subject to political
pressures. There are laws that are not judicially valid. He
suggested that judicial comments on the constitutionality be
open. Citizens want to know how the judicial branch views
constitutional amendments. He maintained that no one is
above the law, not even the legislature.
Representative Phillips questioned if it is appropriate for
the courts to decide what question goes on the ballot. Mr.
Bondurant responded that the public would have to suffer
unconstitutional amendments if the courts are not allowed to
comment.
Representative Grussendorf observed that the court is
concerned with the curtailing of rights not the expansion of
rights. The prisoners' rights were being curtailed by the
amendment.
Co-Chair Therriault questioned if an expansion that touches
on many aspects of the Constitution would be allowed.
Representative Grussendorf observed that there would not be
a challenge unless rights were reduced.
Senator Donley maintained that the legislation does not take
away the court's right to address the issue. The court would
not have the right to modify the language, but they could
take the amendment off the ballot. He observed that limited
entry amendment took rights away from the general population
and gave them to a limited number of Alaskans. Subsistence
also takes rights away from the general population and gives
a higher priority to other Alaskans. These would be called
into questioned by the criteria under Bess.
Vice Chair Bunde summarized that the legislation creates an
all or nothing situation. The court could not chose bits and
pieces of a constitutional question to put on the ballot. He
maintained that the expansion of rights for one group often
results in the loss of rights by others.
Senator Donley responded that the legislation would allow
the Court to chose items that would be allowed on a ballot.
He added that single subject criteria is easier to
understand than a qualitative or quantitative standard. A
single subject standard is a logical expansion to narrow the
problem of amendment versus revision.
Representative Grussendorf referred to limited entry. He
observed that sustained yield and protection of the resource
were also involved.
Representative Austerman MOVED to report HCS SJR 27 (FIN)
out of Committee with the accompanying fiscal note. There
being NO OBJECTION, it was so ordered.
SJR 27 am was REPORTED out of Committee with "no
recommendation" and with a fiscal impact note by the Office
of the Governor, published 1/24/00.
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