Legislature(2021 - 2022)GRUENBERG 120
05/04/2021 03:00 PM STATE AFFAIRS
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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.