Legislature(1999 - 2000)
04/10/2000 01:28 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SJR 27-CONST. AM: REVISIONS OF CONSTITUTION CHAIRMAN KOTT announced that the next order of business would be 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. Number 0871 SENATOR DAVE DONLEY, Alaska State Legislature, testified as the sponsor of SJR 27. He explained that SJR 27, a proposed constitutional amendment, would do two things. First, it would allow the legislature to propose what the court has termed "revisions" to the state constitution to the voters. Currently, the word "revisions" appears once in the Alaska State Constitution and that is found in the section addressing the constitutional conventions. Furthermore, the word "revisions" is not really defined. He pointed out that this became a question in the Bess v. Ulmer case in relation to the prisoners' rights proposed constitutional amendment. In that situation the court found it to be a revision and a imprecise definition was given in regard to what a revision is versus an amendment. Therefore, this resolution would clarify that the legislature would have the power to perform revisions. SENATOR DONLEY turned to the second thing that SJR 27 would do. This resolution would prohibit the court from altering or changing the language of an amendment or revision that is proposed by the legislature or by a constitutional convention. In the Bess v. Ulmer case the court modified the language of the definition of marriage, which was the first time [the court] modified the language of a constitutional amendment. He said: While the court may maintain the power to remove something from the ballot, it's very problematic to have the court modify the language of something prior to a vote of the people because obviously, the constitution reserves the power for determining what should be placed before the people to the legislative branch. Since this requires a two-thirds vote of both bodies, how would the court ever know that the modified language the court has substituted for the original language would've gotten the required two-thirds vote under the constitution. SENATOR DONLEY said the courts shouldn't be modifying constitutional amendments. He pointed out that "we" have a statutory provision for severability, which allows the court to modify statutes. However, that doesn't apply to resolutions or amendments to the constitution. He noted that he has a legal opinion on that matter from Legislative Legal Services. In order to be more precise on revisions, Senator Donley suggested that on page 1, line 6, the language "single subject revisions" could be added. He explained his belief that [the legislature] should not do multiple subject amendments. Such language would allow the prisoners' rights amendment; although that would affect more than one section of the constitution, it would be a single subject. SENATOR DONLEY informed the committee that a definition of an amendment versus a revision that appeared in Bess v. Ulmer was referred to, in the majority opinion, as a hybrid test. However, the concurring opinion, which was correct in his opinion, criticized [that definition] as being confusing and not really a hybrid test. He said that it was really the same test as the California Supreme Court determined in the case that Bess relied upon in general. Senator Donley explained, "In that case, what the California Supreme Court, (indisc.) which was restated in Bess, is that amendments become revisions when they are either quantitatively or qualitatively more complex." Therefore, he reiterated his belief in the importance of voters to be able to do single-subject amendments to the constitution as it is a healthy process. SENATOR DONLEY pointed out that one danger of the Bess decision is that it places anything [the legislature] does into serious question as to whether it meets the vague Bess test. Furthermore, it allows the courts to "play politics to a maximum degree" and drives the fuel for a constitutional convention, which he believes would be a mistake. He felt that the voters amending the constitution is a much more measured process than a constitutional convention. Senator Donley remarked that there is a growing constitutional convention movement in the state. He noted that he has stressed to this group the need to resolve the Bess question before pushing for a constitutional convention, which could go in many different directions. Number 1263 SENATOR DONLEY related his belief that the court overstretched its judicial authority on amending the actual language proposed by the legislature. He further believes that the court stretched the argument in regard to the specific proposition before it, in the court's reliance on the California case that overturned Proposition 115. The bill packet should include a copy of Proposition 115, which is distinguishable on its merits. The proposal in Alaska, the prisoners' rights, was determined to be a revision. The proposal in Alaska was a short single subject proposal which was proposed by the legislature. In California Proposition 115 was a lengthy initiative to amend the California State Constitution; it was a wholesale rewrite of their criminal rights. He felt the California proposal could have been determined by the courts to be a revision as it impacts many different elements of the California criminal code. Furthermore, the California proposal was an initiative process which is very different than an elected body proposing a constitutional amendment. SENATOR DONLEY noted that the bill packet should also include an analysis from the attorney who represented the legislature in the case. Furthermore, there was testimony taken on the Senate side from a variety of views which suggest that something needs to be done about the Bess case. Senator Donley did not see how to justify the right to privacy amendment adopted by the voters; under the Bess case he didn't think it [the right to privacy amendment] would be allowed as it sweeps throughout the constitution and it would fail in the Bess case under the qualitative and quantitative analysis. Furthermore, he suggested that limited entry would probably fail under the Bess test as well. These are important amendments that leave one to ponder whether if someone wanted to challenge those amendments under Bess, how the court would respond to that. Number 1414 REPRESENTATIVE CROFT inquired as to who in the Bess case suggested to the court that it could sever the final sentence, which is mentioned by Attorney Clarkson in his materials [included in the bill packet] as well as the court in footnote 57. SENATOR DONLEY pointed out another problem with the Bess case in that the court adopted simultaneous briefing. He explained that the Bess case was about the definition of marriage, specifically the lawsuit was filed to remove the definition of marriage question from the ballot. One of the arguments in the reply brief - which came at the same time such that the defenders of the constitutional amendments never had a chance to respond - was that if all three of the proposed constitutional amendments (redistricting, the definition of marriage and prisoner's rights) were considered together as an entity, they would constitute a revision. Therefore, the court shouldn't allow all three of them on the ballot at the same time. The superior court rejected that argument. SENATOR DONLEY pointed out that this was not followed up nor was it a point on appeal. Therefore, the parties had no notice that the courts would even take this issue up. However, the court took it up on its own volition and ruled, which resulted in the removal of prisoners' rights from the ballot and amending the definition of marriage. Senator Donley specified: So, it was never even properly before the court, procedurally, and it certainly was never allowed the type of briefing that a constitutional question of this magnitude and a question of separation of powers like this should be entitled to in the judicial process. SENATOR DONLEY, in response to Representative Croft, noted that Attorney Clarkson, in response to a question in oral arguments, said that he felt they could remove that sentence if they wanted to. However, Senator Donley felt that he was in error, especially since the severability clause doesn't address resolutions or constitutional amendments but rather specifically speaks to statutes. REPRESENTATIVE ROKEBERG asked if Senator Donley wanted an amendment. SENATOR DONLEY remarked that he had been trying to focus this resolution, which could be achieved with the insertion of the language "single subject revisions" on page 1, line 6. He felt that such a change would provide people with much reassurance that wholesale changes are not being attempted. He expressed his belief that single subjects are appropriate for the voters to decide. However, he recognized that this opens it up to the court's interpretation as to what a single subject is. Number 1597 REPRESENTATIVE ROKEBERG commented that it seems mutually exclusive because how could a single subject be a revision. SENATOR DONLEY explained that the test that was adopted was a qualitative and a quantitative test. He specified that quantitative refers to the number of sections of the constitution that it may impact. For example, subsistence is a single subject and by itself under the Bess test it is clearly a revision because it affects fundamental human rights and it also affects multiple sections of the constitution. Therefore, it fails under both levels, but it remains a single subject and he believes it appropriate for the voters to have the opportunity to make that decision. REPRESENTATIVE CROFT said he doesn't believe it bears the weight being put on it. There can be single-subject changes that are so fundamental to the constitutional structure that they can't be done by amendment. He stated, "In effect, we are conceding - when Senator Donley talks about a single subject revision being alright - that there are things that are properly read out of our power to amend; they're things that are beyond amendment." REPRESENTATIVE CROFT continued. He said he understood that what Senator Donley would characterize as multiple subject amendments might be beyond amendment. However, there are single issues that are so comprehensive that they are no longer an amendment; those usually address capping or changing a variety of different rights and thus change the fundamental structure of rights or the relationship between the three branches of government REPRESENTATIVE CROFT said he did not believe that privacy, by adding a single right in addition to others, would be much of a challenge under Bess. Although he believes subsistence is an interesting issue, he believes it would survive. The Bess v. Ulmer and the California line of cases were directed at what were very comprehensive amendments and he thought the court was correct in both. REPRESENTATIVE CROFT related his belief that Senator Donley does have a point in Section 2 in that it was Attorney Clarkson's mistake, as he understood, in oral argument that the court had the power to order deletion. That was a fundamental error and thus he didn't object to inserting that [the court] can't do that. Representative Croft agreed with Senator Donley that how the legislature frames it is what should go before [the court]. Representative Croft did feel that there is a difference between amendments and revisions. Furthermore, he believes that revisions do belong in a constitutional convention. REPRESENTATIVE ROKEBERG remarked that the revision standing alone is better because of the actions of the Alaska Supreme Court. SENATOR DONLEY said that he was merely making a suggestion to move somewhat towards Representative Croft's position. However, he believes that he and Representative Croft have a philosophical disagreement on the separation of powers. Still, he felt that he and Representative Croft would both agree that the single subject is somewhere in the middle. Senator Donley left it to the will of the committee. Number 1853 REPRESENTATIVE CROFT moved that the committee adopt Amendment 1, to delete Section 1. He commented that Section 2 is less problematic for him. He said, "I don't think courts should do that, ... but I think the Bess v. Ulmer framework and the framework of our constitution allowing amendments, but not revisions is an appropriate one." REPRESENTATIVE ROKEBERG objected and remarked that Bess v. Ulmer is the most egregious separation of powers he has ever observed. Upon a roll call vote, Representatives Murkowski, Croft, Kerttula and Kott voted in favor of Amendment 1 and Representatives Rokeberg and James voted against it. Therefore, Amendment 1 was adopted by a vote of 4-2. Number 1939 REPRESENTATIVE ROKEBERG moved to report SJR 27 am, as amended, out of committee with individual recommendations and the accompanying fiscal note. There being no objection, it was so ordered and HCS SJR 27(JUD) was reported out of the House Judiciary Standing Committee.
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