Legislature(2005 - 2006)CAPITOL 106
03/14/2006 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB475 | |
| HB448 | |
| HB438 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 475 | TELECONFERENCED | |
| += | HB 448 | TELECONFERENCED | |
| += | HB 438 | TELECONFERENCED | |
| += | HB 45 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 438-INITIATIVE, REFERENDUM, RECALL PETITIONS 9:27:08 AM CHAIR SEATON announced that the next order of business was HOUSE BILL NO. 438, "An Act relating to initiative, referendum, and recall petitions; and providing for an effective date." [Although it was never adopted, the committee substitute to which the committee referred throughout this hearing was committee substitute (CS) for HB 438, Version 24-LS1344\X, Kurtz, 2/22/06, included in the committee packet.] 9:27:18 AM REPRESENTATIVE RAMRAS introduced HB 438 as sponsor. He said he learned recently that there is "a certain looseness" to the processes related to initiative, referendum, and recall petitions. 9:29:00 AM JIM POUND, Staff to Representative Jay Ramras, Alaska State Legislature, offered further details regarding HB 438, on behalf of Representative Ramras, sponsor. He described the proposed bill as a "tweaking" of House Bill 31 - legislation that was passed in 2004. He stated, "The process is broken down primarily between petitions and recalls, but it deals in generalities between the two, as well." Although it is a law that those collecting signatures must be residents of the state, there have been cases where nonresidents have come up to work on petitions during particular "drives." Mr. Pound said there is language in [Version X] that would allow the signature gatherer up to $15 a day for food if he/she travels more than 100 miles from home. He explained that quite often, individuals from one of the urban centers travel to outlying regions. MR. POUND stated that HB 438 would require each "committee" to receive training related to the rules of circulating a petition or recall. Presently that is not a requirement. There would also be a requirement that [the sponsors] instruct the circulators as to what the rules are. MR. POUND indicated that when signature collectors travel to rural areas, they sometimes have no idea whether or not the district they are in is "qualified"; therefore, the collectors "run blind" until they turn in the petition books. He said HB 438 would allow the petition gatherers or the committee to submit up to 2,000 signatures to the Division of Elections prior to the actual turning in of the petition. He explained, "There's a $1-dollar fee that covers expenses for the division, but it will also allow the petition gatherers ... to ... have a read on ... the number of signatures and the percentages that they are receiving on an average." 9:31:49 AM MR. POUND indicated [one of the provisions in Version X is] that an individual may not start a recall effort if a public official is within 270 days of the term's end. He offered an example of "term's end." He said the proposed legislation would change the formula for the recall petition from 10 to 20 percent. He emphasized that the issue of recall is a serious one and should only be approached when there is strong support. He posited that the current requirement to obtain signatures of 10 percent of those who voted in the previous election within a district does not represent strong support, ultimately costs the state money, and inflicts unnecessary hardship on the public official. Mr. Pound said when a person seeks a recall, he/she must make charges against the public official. Regarding those charges, [he paraphrased proposed language in Version X, which read as follows]: (5) a certification by each member of the recall committee, under penalty of perjury, that the facts alleged in the application are true to the best of the member's knowledge. MR. POUND noted that there is no current definition of "normal use" and "recall efforts," and he indicated that the sponsor has attempted to supply those definitions. He said the proposed legislation further defines the petition and recall process, which will result in a better and "cleaner" public process. He urged the committee to support the bill. 9:33:43 AM MR. POUND, in response to a question from Representative Gruenberg, said there are some legal opinions regarding HB 438 that he has not yet had an opportunity to review. 9:33:50 AM REPRESENTATIVE GRUENBERG said he would like to view them. He referred to [the language on page 4, lines 8-10, which read as follows]: Sec. 15.45.490. Time of filing application. An application may not be filed during the first 120 days or the last 270 days of the term of office of any state public official subject to recall. REPRESENTATIVE GRUENBERG said he wonders if the addition of "270 days" may be unconstitutional, because under Article 11, Section 8 of the constitution, all public officials of the state, except judicial offices, are subject to recall. He said, "This would carve out a class of people who are not subject to recall within the last three-quarters of the year of their term. 9:34:46 AM REPRESENTATIVE RAMRAS said, "I believe that presently in statute it's 180 days, so all we're doing is adjusting the current statute. So, the current statute would have to also be unconstitutional. But it's just a tweak, so it may or not be the case, and I think a lot of this is subject to the ... Buckley case ...." 9:35:10 AM CHAIR SEATON remarked, "Representative Ramras, the citation in the bill, here, does not show a deletion of those terms." 9:35:14 AM REPRESENTATIVE GRUENBERG clarified: ... No, what he is saying is on line 9: "may not be filed within the first 120 days". And logically I would have to agree that if that - the last 270 - is unconstitutional, then probably the first 120 days might also be subject to the same challenge .... 9:35:34 AM MR. POUND noted that the review he received from Legislative Legal and Research Services does not address that issue. 9:35:57 AM REPRESENTATIVE GARDNER asked how many successful recall efforts have been made in Alaska and how many recall petitions have actually made it to the ballot. 9:36:01 AM MR. POUND said he doesn't know the exact number. Notwithstanding that, he related that in most of the cases where there has been a recall, the individual in question has resigned. In response to Representative Gardner's request that he find out the answer, [Mr. Pound nodded]. 9:36:27 AM CHAIR SEATON noted that in Sections 5-8 of Version X, "270" replaces "[180]", but Section 2 - referred to by Representative Gruenberg - is also amended to "270 days", but from "120", not "180". He suggested that there may be some discrepancy in play. He asked Mr. Pound to check with Legislative Legal and Research Services to find out if that was an omission. 9:37:22 AM REPRESENTATIVE LYNN directed attention to page 1, [line 12, through page 2, line 1, of Version X], which read as follows: Sec. 15.45.003. Circulation; prohibition. (a) A petition may be circulated only in person throughout the estate. However, in the case of a petition to recall a member of the state legislature, a petition may be circulated only in person in the senate or house district represented by the official sought to be recalled. REPRESENTATIVE LYNN asked if that means, for example, that [the circulator] could not gather signatures in a supermarket across the street if it was out of his/her district. 9:38:31 AM MR. POUND answered that for recalls, everyone who signs the petition has to be a member of the district in which the public official being recalled resides. He added, "So, going outside of the district would probably be considered a violation." REPRESENTATIVE LYNN asked, "If you got the signature outside the district, but the person lived within the district, would that be acceptable?" MR. POUND responded, "As I understand the change - no, it would not." 9:38:56 AM CHAIR SEATON clarified that the bottom of page 1 to top of page 2 [in Version X] is what is being discussed. CHAIR SEATON, in response to a query from Representative Ramras, clarified that the questions from Representative Lynn have to do only with recalls, not with initiatives or referendums. REPRESENTATIVE GRUENBERG said he thinks Representative Lynn has made a good point; it shouldn't make any difference where the signature is obtained, only that the person who signs the petition is a registered voter in the district in which the person being recalled resides. 9:39:48 AM REPRESENTATIVE RAMRAS responded that his intent was not to draw boundaries as previously described by Representative Lynn. 9:40:29 AM CHAIR SEATON stated that HB 438 is a complicated bill, and he said the committee would certainly work on it for awhile. 9:41:22 AM MR. POUND, in response to a question from Representative Gruenberg, stated that the person who signs the petition must be a registered voter. 9:41:34 AM ANNETTE KREITZER, Chief of Staff, Office of the Lieutenant Governor, revealed that Lieutenant Governor Loren Leman has spoken with the sponsor of the bill and has "encouraged us strongly to work with the sponsor and help him accomplish the goals that he's set out to do here." She stated that the sponsor has said that he would like to have "this discussion on the record." Ms. Kreitzer recommended that the most efficient manner to study a bill is to deconstruct it first, and then reconstruct it - to not build understanding of the bill on assumptions, but rather on the sponsor's explanation of his/her intent. She referred to a list of questions from the Office of the Lieutenant Governor [included in the committee packet], and she explained that they were formed to illicit the sponsor's intent, not to be adversarial. 9:43:01 AM MS. KREITZER, in response to a request for clarification from Chair Seaton, she said the aforementioned list shows materials submitted by Whitney Brewster, addressed to Ms. Pierson. MS. KREITZER said she examined the bill in terms of issues. One of the first issues, she noted, is the qualification of a circulator, to include the definition of "not registered to vote in any other state." She said, "We do believe that this is not consistent with the Buckley decision." She said the Office of the Lieutenant Governor does not think there is a constitutional issue regarding the mandatory training of sponsors, but has recommended that the sponsor "separately and independently verify that." In the recent past, the [Division of Elections] has been asked to grant waivers for people who have gone through the training in the past and don't feel the need to repeat it. If the bill makes training mandatory, there will be no more waivers. REPRESENTATIVE GRUENBERG said it seems like a good idea to allow [the division] the discretion of a waiver. He asked if Ms. Kreitzer sees any benefit in disallowing the waiver. MS. KREITZER said the sponsor and the director of the division would most likely like to weigh in on the subject. She noted that some people who have asked for and received the waiver still had "some problems" that could have been avoided had they undergone the training again. MS. KREITZER cited another issue of the bill is in regard to "the certification that a circulator has not received more than $15 to cover meals." She said there are some sections in the bill that would best be addressed by the Alaska Public Offices Commission (APOC), and she noted that the director of APOC would be available to testify. 9:45:54 AM MS. KREITZER, regarding the enforcement of infractions of election law, suggested that the committee hear from the Criminal Division of the Department of Law, regarding how it currently handles complaints related to those infractions. She suggested APOC address the issue of who enforces and collects civil fines. She mentioned an advance verification of signatures requirement, which Mr. Pound had noted was being paid for with $1 per signature fee. However, Ms. Kreitzer said, "As you all know, [if] that fee goes into the general fund, we would still have to reflect an increased cost to the Division of Elections to implement this section." MS. KREITZER, regarding the proposed raised thresholds related to recalls, indicated that the decision to adopt them would be a policy call of the legislature. She mentioned a requirement for certification that facts in the recall application are true. She added, "It is an interesting application of recall law that these facts don't necessarily have to be true, and it's a very important point." She offered to provide additional material on the subject. 9:47:23 AM REPRESENTATIVE LYNN questioned how something can be a fact if it's not true. 9:47:39 AM REPRESENTATIVE GRUENBERG said he would like to see that material. Referring to the issue of raising the 10 percent to the 20 percent, he noted that in the field of taxation, there is a distinction between a tax that is regulatory in nature and one that is called, "confiscatory" and has a "chilling fact on the activity." He said he thinks it would be unconstitutional to require that 100 percent of people in the district sign the petition; it would have "a chilling effect on the ability to exercise that activity." He questioned whether doubling the requirement for signatures would have an "unconstitutional chilling effect on the protected constitutional activity." 9:49:22 AM REPRESENTATIVE RAMRAS countered, "What if it's too easy? What if 10 percent is too low of a bar and it's easier to 'un-elect' somebody than it is for a person to get elected?" 9:49:59 AM CHAIR SEATON clarified the issue as follows: We're talking about a legal question of saying, "At what point of raising the amount do we get to a legal question of inhibiting - probably unconstitutionally - the ability to recall?" CHAIR SEATON said it may be a good idea to get a legal opinion in writing. REPRESENTATIVE GRUENBERG asked Mr. Pound if this issue is written in the legal opinion he spoke of previously. 9:50:28 AM MR. POUND answered no. 9:50:53 AM SARAH FELIX, Assistant Attorney General, Labor and State Affairs Section, Civil Division (Juneau), Department of Law, concurred with Chair Seaton that the aforementioned issue of raising the percentages is not one that attorney Mike Barnhill focused on when studying the recall aspects of the bill; therefore, she recommended bringing the issue to the department and then bringing an opinion back to the House State Affairs Standing Committee. 9:51:44 AM REPRESENTATIVE GRUENBERG said he would like both the Department of Law and Legislative Legal and Research Services to discuss any possible constitutional problems with the bill. 9:52:34 AM MS. KREITZER noted that the following areas currently are not defined in statute, but would be through Version X: corruption, incompetence, lack of fitness, and neglect of duties. Regarding Chair Seaton's previous observation that of the five proposed changes in the number of days related to term of office, one of the references did not match, she said it is most likely an oversight and the department will research the matter. 9:53:43 AM WHITNEY H. BREWSTER, Director, Central Office, Division of Elections, addressed the fiscal implications of HB 438. She directed attention to page 2, line 8, where reference is made to a form from the division that a circulator would fill out showing that he/she traveled more than 100 miles from home in one day in order to receive $15 compensation. She said this provision in the bill would require the division to develop another form and administratively process the form. She directed attention to page 3, [paragraph] (6), which read: (6) that the circulator has not entered into an agreement with a person or organization in violation of AS 15.45.003(b); MS. BREWSTER suggested that that language would take care of the requirement without requiring another form to be processed, because the circulator would sign that he/she has met the requirements and has not "violated subsection (b) on page 2." 9:56:27 AM CHAIR SEATON clarified that Ms. Brewster is saying the person would make submissions to the signature gatherer that he/she was out for 15 or 20 days, thus that proclamation would not have to be on a separate form designed by the division. He stated, "The fact that they have to sign that they ... haven't claimed more than their due would take care of that fiscal responsibility." MS. BREWSTER said that's correct. CHAIR SEATON summarized, "The difference between those two approaches is: in one way we would have a listing at the division of the number of days that were claimed by the individual, and the other way we would have a certification, but no listing of the days. Is that correct?" 9:58:00 AM MS. BREWSTER answered in the affirmative. Regarding the same issue, she suggested, "This may be more of a responsibility of APOC than a Division of Elections' responsibility." She directed attention to page 2, line 21, subsection (e), which read: A person who pays a circulator and a circulator who receives compensation other than that permitted under (b) of this section are liable to the state for a civil fine of $1 for each signature gathered by the circulator on a petition filed with the lieutenant governor. MS. BREWSTER said the question is, "Who will assess and collect this fine?" She explained that historically the division has never been a "fining body." She suggested that the collecting of the fine may be more appropriate a task for APOC than for the division. 9:59:15 AM MS. BREWSTER turned focus to language [beginning on page 3, line 31, through] page 4, line 2, which read as follows: The sponsors may, before filing a petition, submit individual numbered petitions containing up to a total of 2,000 subscriptions to the director for review. MS. BREWSTER said the additional signatures for review will require additional staff time, which will have a fiscal impact. The $1 per signature fee assessed will go to the general fund and will not benefit the Division of Elections' budget. She directed attention to page 4, line 17, which shows the increase in the percentage of required signatures for a recall from 10 to 20 percent, which she said will result in additional signatures for review, which could also have a fiscal impact on the division. 10:00:59 AM MS. BREWSTER, in response to Representative Gruenberg's aforementioned query, said any time the required number of signatures is increased, it makes it more difficult for an individual or committee to recall or get an initiative on the ballot. Whether that difficulty inhibits the person by creating a threshold that is insurmountable is a question for the Department of Law, she said. 10:01:37 AM REPRESENTATIVE GRUENBERG said the recall process is part of the balance of power among the people and the legislature. He said he would like to hear feedback as to whether or not the raising of the signature requirement would upset the balance of power in state government from a constitutional point of view. 10:02:29 AM MS. KREITZER interjected, "We're happy to await the Department of Law's assessment." 10:02:45 AM VICE CHAIR GATTO directed attention back to page 2, line 21, [text provided previously], and stated his concern is not with the fine, but is related to whether a signature collected "when a person is performing an illegal act" qualifies as a valid signature. 10:03:32 AM MS. BREWSTER said [page 2, lines 25-27] answer Representative Gatto's question as follows: (f) In determining the sufficiency of a petition, the lieutenant governor may not count subscriptions on a petition circulated by a circulator who violated (b) of this section. 10:03:49 AM REPRESENTATIVE GRUENBERG said he would also like that issue addressed in a legal opinion. He said, "It's one thing to fine the person because they're getting paid too much, but it's something else not to count the signature of the citizen who wishes to endorse the petition." He said he would like that issue examined from a constitutional point of view. 10:04:21 AM CHAIR SEATON remarked, "I don't think we're just talking about constitutional, we're talking about all legal issues in the state." REPRESENTATIVE GRUENBERG concurred. 10:04:42 AM REPRESENTATIVE GATTO proffered, "It's possible for someone who opposes the recall to collect a whole lot of signatures in violation of the rule, and therefore nullify a whole bunch of people who thought they were voting for a recall, but now have been disqualified." 10:05:23 AM MS. BREWSTER pointed out that if someone wants to sabotage a recall effort, they could do that right now by not signing the back of the book or not signing whether or not he/she has been paid. 10:05:53 AM REPRESENTATIVE GRUENBERG amended his previous request by asking that the legal opinions also address the constitutionality of the current law. 10:06:33 AM MS. BREWSTER, in response to Representative Gardner's question as to how many recall petitions have been successful and how many have made it to the ballot, said she doesn't have that information at hand, but will follow up on that. 10:06:47 AM MS. KREITZER offered her understanding that there have been three court cases on recalls that involved municipal-elected officials, and only one for a state-elected official. The latter recall was successful, she reported. It did not go to the ballot, because the individual resigned; but had the individual not resigned, it would have gone to the ballot. She added that there is one recall pending in court. REPRESENTATIVE GARDNER questioned why an effort is being made to make recalls so difficult when there has only been 1 in 50 years. 10:08:18 AM MS. KREITZER asked that Brook Miles be allowed to speak on behalf of APOC, since currently any committee formed to support or oppose an initiative, referendum, or recall is required to file with APOC. She stated, "There is an opportunity to file what's called a zero report for efforts that are merely collecting signatures. And it would seem, since the focus of those parts of the bill that I've mentioned before have to do with the reporting of people that are collecting signatures, that it may be a good fit, but it's for the committee to discuss and decide." 10:09:27 AM BROOKE MILES, Director, Alaska Public Offices Commission (APOC), Department of Administration, said she hasn't had a chance to study the bill to "explain whether or not it's a good fit with APOC." She continued as follows: As the committee may be aware, the requirements for filing disclosure reports are limited to when groups are collecting signatures. In other words, they're filing zero reports until such time as a recall, referendum, or proposition is certified to appear on the ballot. At that point, the groups that are formed to support or oppose the election must file a full disclosure report. ... At this point we have no idea who gets paid a dollar or doesn't get paid a dollar for signatures, and I'm not really sure how that report is going to look at APOC. And just from a fiscal standpoint ... I have to, in all fairness, say at this point I have such limited staff I don't have one person who can do one more thing. So, it would certainly have fiscal impact on this agency. 10:11:01 AM CHAIR SEATON asked Ms. Miles to consider some of the issues that the Division of Elections and the Office of the Lieutenant Governor pointed out might be more appropriate for APOC, and to assign any fiscal note necessary. MS. MILES acquiesced. 10:11:41 AM REPRESENTATIVE GARDNER referred to the language in the bill regarding training, [found on page 3, lines 1-4], which read as follows: Sec. 15.45.005. Mandatory training. (a) At least once during each two-year period between general elections, the division of elections shall offer training explaining the legal requirements for petitions. Each committee applying for or circulating a petition during that period shall attend the training. REPRESENTATIVE GRUENBERG asked Ms. Brewster to offer details related to the training, including: where it is offered, by whom, how much it costs, and how it would affect someone from a rural area trying to recall a state representative. 10:12:32 AM MS. BREWSTER relayed that currently the training is offered by a division employee, in person or over the phone. She said she does not know the cost, but can find out. She stated that an individual or committee in a remote rural area could be offered training by teleconference. In response to a follow-up question from Representative Gardner, she offered her understanding that the training takes several hours. In response to a question from Chair Seaton, she said she doesn't believe [the training] is required for municipal election recalls. 10:14:03 AM CHAIR SEATON asked Ms. Brewster to get back to the committee with that information, because he said it is important to know which elections will be covered under the bill. 10:14:12 AM HOPE L. CERMELJ, testifying on behalf of herself, revealed that she is a circulator and petition gatherer. She directed attention to a handout she had obtained from the Division of Elections [included in the committee packet], showing statistics from March 3, 2006, including that there will be 450,985 voters in the next election. Ms. Cermelj stated: 240,211 people - possible voters - are upset with what's going on with the Republican/Democratic process here in the state of Alaska; that's why they (indisc.). I myself was certified in the Fairbanks office at the Division of Elections to be a voter registrar, so I was on that ... petition trail doing the same. We have a new political party in the state of Alaska right now, which Loren Leman approved last year, and that's the Veterans' Party. MS. CERMELJ noted that [there is a missing column on the first page of the handout], which should show a [column] "V," which displays the numbers for that Veterans' Party. She implored the Division of Elections to include that group's numbers on the page of statistics so that the numbers are more accurate. She noted that she has carried four petitions, and she listed places in the state in which she has lived and mentioned legislative topics of concern. 10:18:09 AM MS. CERMELJ referred to the next two pages of the handout, and pinpointed the areas on the page that show a list of reasons that people who signed petitions will not be counted. She noted that on the first page of petition totals, it shows that 8,171 people will not be counted because their names did not match. Ms. Cermelj opined, "That is against their civil liberties." The list shows that there were 1,968 duplicate names. She indicated a connection between the proposed legislation and ensuring that petition gatherers are registered voters from Alaska who care about the issues. She talked about a man who came up from the state of Washington to gather petitions. The man, she related, was "in it for the money," and he intimidated the Native elders of the village and was asked to leave. Ms. Cermelj related further personal experience in petition gathering. 10:20:32 AM MS. CERMELJ indicated that there has recently been a change in personnel within the Division of Elections and the director is currently learning about a new system that will be in place forthcoming. She relayed that, as a voter registrar, she has received four phone calls from people who have yet to receive their voter cards. She stated her believe that their rights are being violated. Ms. Cermelj offered statistics from the handout showing the petition totals from an initiative related to a 90- day regular session of the Alaska State Legislature, emphasizing that out of 450,985 voters, the number of unqualified signatures was 11,370, which she reiterated is against the civil liberties of those people. 10:22:56 AM MS. CERMELJ shared further accounts, including one related to homeless people who did not receive their voter registration cards, and a story of a woman affected adversely by political decisions made, and she emphasized that people sign petitions in order to see change. 10:24:41 AM CHAIR SEATON said the committee is not dealing with any one specific petition, but with the system in general, and he remarked that Ms. Cermelj brought up many points for the committee to consider. 10:24:57 AM MS. CERMELJ, in response to a question from Representative Gardner, said she supports the bill, with the exception of the $15 payment, which she said she hopes can be more. 10:25:28 AM REPRESENTATIVE GARDNER, regarding Ms. Cermelj's previous reference to the person from out of state, suggested that a local person could also be rude and disruptive and be asked to leave. 10:25:43 AM MS. CERMELJ responded that that is true; however, the local people have good training. 10:26:03 AM CHAIR SEATON asked Ms. Cermelj to specify if she supports the bill's proposal to increase the number of qualified signatures for a recall petition from 10 to 20 percent, and also if she is in favor of not allowing a petition to be filed within 270 days of termination of office. 10:27:08 AM MS. CERMELJ answered yes to both. CHAIR SEATON noted that neither of the petitions for which Ms. Cermelj brought the petition totals would have passed had the percentage been at 20. 10:28:38 AM REPRESENTATIVE GARDNER asked Ms. Brewster, "If somebody, say Andy Jones, is registered as Andrew Jones, and he signs Andy Jones and provides a correct birth date, would that signature be qualified, or not?" 10:29:10 AM MS. BREWSTER said that signature would count. 10:29:20 AM REPRESENTATIVE GARDNER asked at what point is the name dissimilar enough to be considered unmatched. 10:29:32 AM MS. BREWSTER answered that if there is a qualifier that allows the division to locate the signer within the voter registration system, and the name is similar, then the signature will count. If the name is entirely different, she said, it would not be counted. 10:30:03 AM CHAIR SEATON asked, "If someone signs Andy instead of Andrew, would that mean that it probably wouldn't be a computer match - that would be a manual match?" 10:30:11 AM MS. BREWSTER said she believes that would be a manual match. 10:30:53 AM CHAIR SEATON asked another testifier to return at the next hearing. [HB 438 was heard and held.]
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