Legislature(1999 - 2000)
02/11/2000 10:11 AM Senate FIN
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* first hearing in first committee of referral
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SENATE JOINT RESOLUTION NO. 27
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.
SENATOR DONLEY, as sponsor to this legislation testified by
teleconference from Anchorage. He noted that SJR 27 would
amend the Alaska State Constitution to make it possible for
the Legislature to place constitutional revisions, as well
as amendments before Alaskans for a vote. He added that
this legislation would also add a new section to the
constitution prohibiting a court from changing the wording
of constitutional amendments or revisions proposed by the
legislature or by a constitutional convention.
Senator Donley noted that SJR 27 has become necessary
because of the Alaska's Supreme Court decision in Best vs.
Ulmer. He offered that in this case, the right of Alaskans
to amend the constitution was severely weakened. He stated
that in the Best case, the members of the court, for the
first time in our history, removed a legislatively
sponsored constitutional amendment from the ballot, which
was the prisoner's rights limitation amendment. Senator
Donley noted that the court also modified the language of
another proposed amendment, which was the definition of
marriage amendment. He remarked that this decision badly
unbalances the constitutional separation of powers in
Alaska and destroys a fundamental element of the success of
America's democracy, which is the right of the people to
amend their own constitution. Senator Donley specified
that this precedence sets up the Supreme Court as a
gatekeeper or oligarchy of lawyers that can dictate to the
public what constitutional issues they can and cannot vote
on.
Senator Donley continued that the Best decision, for the
very first time, created a distinction between amendments
and revisions to the state constitution. He noted that
there are two ways to amend the state constitution, as
outlined in a handout to the Committee. He offered that
the first is by a proposed amendment to the people of
Alaska by the legislature through a two-thirds vote, and
the second is by a constitutional convention.
Senator Donley pointed out that the word "revision" appears
in the section of the constitution that addresses
constitutional conventions, "A convention can propose
revisions and amendments." However, this word is not found
anywhere else in the constitution. He also noted that the
distinction between revisions and amendments was never made
clear during the constitutional convention. As a result,
he surmised the court concentrated on "revision" when
considering the Best case. He told the Committee that the
court adopted a vague test called a "hybrid test," based on
a California Supreme Court case. He concurred with the
dissent opinion in Best that argued that this standard is
confusing and is not a hybrid test at all. In Senator
Donley's opinion, the ruling decision stated that "we know
revisions when we see them. We can't really tell you what
they are, but we're going to look at them from a
qualitative and a quantitative point of view."
Senator Donley continued that in terms of quantitative,
this should be based on how many separate articles of a
constitution a proposal may amend or affect. He stressed
that the impact of this is very dramatic. He added that
the ambiguous nature of these definitions, allow the
members of the court tremendous latitude as to what
constitutional issues Alaskans can and cannot vote on.
Senator Donley offered that by usurping the elected
legislators constitutionally granted authority to decide an
amendment, which is appropriate to place before the people,
the court could and now have removed amendments from the
ballot. He remarked that this takes the power away from
the people to amend their own constitution.
Senator Donley continued that since statehood Alaskans have
been reluctant to call constitutional conventions due to
the uncertainty of what would result at such a forum. He
informed that Alaskans have voted 24 times to amend their
state constitution. He cited that several of these
amendments, especially the right to privacy and the limited
entry amendment arguably do not meet the vague test the
court adopted in Best vs. Ulmer. He noted that as a
result, to force Alaskans to call constitutional
conventions to make even single subject changes to their
constitution is really poor public policy and could result
in bad government. He also pointed out that the Best vs.
Ulmer case was really strange in how the court handled it.
Attorney Clarkson's analysis to this case is also included
in the Committee's packet.
Senator Donley noted that the court adopted a simultaneous
briefing procedure so that issues were not before both
parties in order for them to respond accordingly. He
suggested that the Committee review the analysis of the
attorney who represented the Legislature in this case. He
pointed out that most of these issues, which the court
finally decided, were not briefed, considered in the lower
court and were not on the points of appeal. He noted that
the court did not have the benefit of appropriate briefing
or information to make the decision it finally did,
according to the analysis of Senator Donley. He added that
the California case, which the court heavily relied upon,
is very distinguishable from the situation before the court
in Alaska. He reported that in California, this state is
allowed to conduct constitutional amendments by initiative.
He noted that this was an initiative to change the
California constitution that affected many sections of the
same and it was very extensive. Senator Donley added that
this specific proposition 115 was in the Committee's
packet. As a comparison, he pointed out that this
proposition, which was removed from the ballot was very
extensive. He pointed out that this could arguably be an
example of a revision, whereas the Alaska amendment is very
simple and deals with a single subject. He stressed that
for the Alaska court to rely on this California case was
really mistaken and causes a serious concern.
Senator Donley summed up for the Committee that this
situation creates great constitutional uncertainty, the
separation of powers has been dramatically altered. He
affirmed that every amendment that the public wishes were
subject to incredible uncertainty and could be subject to
the political whims of the five members of the State
Supreme Court. He added that the resolution would simply
clarify that the legislature also has the ability to place
revisions "so that the court could no longer use that as a
hook to exclude specific proposals." He pointed that it
would also clarify that the court should no longer modify
the language of propositions issued by the legislature to
the people, before the latter is allowed to vote on them.
He concluded that the constitution clearly gives the power
of amendment to the legislature.
Senator Adams stated that he opposed this joint resolution.
This legislation tries to change the process by which
revisions to the constitution are instituted. He added
that he did not think that the system was broken to date,
in order to do something like this. He noted that the
framers of the Alaska Constitution allowed for
constitutional conventions every ten years or the issuance
of amendments. He offered that the system might not be
perfect but it works for Alaskans. He referred to section
two of this resolution, page two, line one, which bars the
court from altering the language of a propose
constitutional amendment. He wondered how many times that
the Supreme Court makes language changes to constitutional
amendments. He stated that he knew of only one other,
which was the same sex marriage issue. In regards to
section two, he stated, "what we might be doing is throwing
out the baby with the water." He referred to AS01.00.30
regarding severibility, which allows that if the court
finds one part of a bill invalid, it does make the rest of
the bill invalid. He believed that the courts should be
allowed to correct mistakes by the legislature. He also
noted the retroactive clause of this legislation, to
January 3, 1959, on page two, line six and noted that we've
got to ask ourselves, "what does it mean, what measures
that we have taken up since then that we would have to look
at. I would like the sponsor to name some of those. He
hasn't named one of that, and that's Best vs. Ulmer, and
that has to do with the Alaska marriage amendment that we
worked on. But we need to know, what are these, I think
that this proposed amendment is so broad that it would
constitute a revision and therefore not be allowed on the
ballot."
Senator Donley responded that the retroactive clause is to
preserve the status quo of the state's constitution. He
added that it would protect the existing limited entry
amendment that was approved by the people. He stated that
it would protect the peoples right to privacy, which was
originally approved by the people. He noted that it would
protect the creation of the Judicial Counsel to review the
performance of judges; it would protect the Commission on
Judicial Conduct, which was created by the people to
enforce proper conduct among Alaska's judges. Senator
Donley continued that it would also protect the other 18 to
20 amendments to our state constitution that the people
have approved since statehood. He noted that these might
no longer be defensible due to Best vs. Ulmer, not to
mention the related hybrid test. He then outlined specific
amendments to the constitution that could be affected.
Senator Leman responded to Senator Adams question regarding
how often the court modifies the language in constitutional
amendments. He recollected that this had happened only one
time, but he thought this was one time too many. He felt
as though this was the high-water mark of arrogance by the
court in deciding what is necessary and what is not
necessary in a constitutional amendment. He felt as though
they need to draw the line and added that he thought this
language in section two was absolutely necessary.
Senator Adams disagreed with this and noted that the court
tries to interpret the legislature's intent as it is
codified in statute or regulation. He noted the "one time"
change to an amendment as previously referred to, which
dealt with same sex marriage, and noted that Senator Leman
was too close to this issue perhaps. He felt as though
this resolution was so broad, it would not hold muster
because of the number of issues as stated previously by the
sponsor of the bill.
Co-Chair Torgerson agreed with leaving the referred
language as it stands. He added that the Supreme Court's
duty in regards to the constitutional amendment is to
either rule on constitutionality or strike it down, because
it is not, or let it stand as written. He stressed that
the court should not take the liberty of changing language
to meet what they think is the test of constitutionality.
He felt as though this was a separation of power issue.
Senator Donley responded to the point made about the
general severability clause, which presently exists in
statute. He felt as though this clause was typically
appropriate for legislation. "We can always buy specific
provision legislation exempt it from that severibility
clause." But, he added that it is not appropriate when the
legislature places something before the people for a vote
on a constitutional amendment. He noted that this is a
very different question regarding legislation, which can
simply be remodified by legislative act and a
constitutional amendment, which requires a vote of the
people for ratification. He stated that he did not believe
that the severability clause was appropriate in regards to
constitutional amendments. He noted that the court would
also retain its fundamental authority to put something on
the ballot based on whether it conflicts with our federal
constitution.
Senator Adams stated that he had not heard from any of his
constituents that this change was necessary.
MARK REGAN testified on behalf of himself, although he is
the Supervising Attorney, for Alaska Legal Services. He
testified in favor of SJR 27 for different reasons. He
stated that the problem, which the Best vs. Ulmer decision
created is not so much the wrong idea completely, but
rather the constitutional test that the Alaska Supreme
Court is supposed to apply as a result, which does not make
any sense. He noted that the Alaska Supreme Court set up a
test that is impossible to predict how a case will result
and puts proponents of constitutional amendments in a
terrible position. He pointed out that the distinction
between an amendment and revisions is something, which the
constitutional convention discussed. It is an issue that
potentially has some value. He commented that the
California cases illustrate this. Mr. Regan remarked that
one of these centered on a comprehensive rewrite of their
constitution. He added that there was no deliberation
about this in a constitutional convention, but rather it
was a separate document they wished to add in. He remarked
that there was some value in "saying well you should go
through a revision process rather than an amendment." He
added that the other California case had to do with a
prisoner's right restriction and here there was fundamental
reallocation of powers from the judicial branch to the
federal judiciary to decide an individual's rights. He
remarked that what the Alaska Supreme Court did in Best vs.
Ulmer was to make it impossible to predict how these kinds
of cases should be decided and made it impossible for
legislators to conduct business during a constitutional
convention. He referred to the hybrid test, which means
that if there are a whole lot of words without much
substance to their meaning, and then there are few words
that might affect something important, it is impossible to
tell what should stand.
Mr. Regan stated that eliminating the distinction between
amendments and revisions, while giving the legislature the
power to propose [indiscernible.] He affirmed that this
gets rid of what could be a valuable distinction. He added
that he did not see how the Alaska Supreme Court could back
out of the position it has taken and make this
comprehensible for the legislature. He stated that for
this reason, eliminating the distinction and the
uncertainty involved is better than trying to preserve it,
while hoping for test cases. He remarked that one of the
areas, of which this might come up, if this distinction is
preserved, is that of a subsistence constitutional
amendment. Mr. Regan commented that it is certainly
possible to argue that such an amendment could fail this
hybrid test, prompted by a decision by the Alaska Supreme
Court, unable to be enacted by the legislature and needed
to be considered in a constitutional convention. He stated
that he did not know if this was right or not, but a
distinction argument does not have much to do with the
merits of the issue.
Mr. Regan noted that what the Alaska Supreme Court did in
Best vs. Ulmer, by taking the second section out of the
same sex marriage amendment, is that it did not make sense.
They took this authority upon themselves. He felt as
though the power of a constitutional amendment should be
sufficient enough that the courts should not be able to
then craft their own version. He asked the committee to
consider an issue he had with the retroactive clause. He
cautioned that the danger of this is that an amendment
could potentially be considered by the Supreme Court before
making it on the ballot. He stated that if the Alaska
Supreme Court sees a retroactive clause all the way back to
statehood it may well think "this looks more like a
revision under the hybrid test than it does a
constitutional amendment to us, it has to be done by a
revision so we're going to knock that off the ballot. Now,
aside from giving you all a good reason to be sitting
around here in 2001, debating the same issue, that seems
pointless to me. And I would suggest that if there is one
point where this was a problem, then a retroactive clause
is not necessary."
Senator Adams stated that the Committee did not want to fix
this, and if the Committee left it as it, including the
retroactive clause the court might find it
unconstitutional. He noted that he liked the bill as it
is, but that he did not support it.
Senator Donley noted that retroactive clause was suggested
by former Attorney General Cole. He added that this clause
would only be a problem if the court goes back and
reconsiders some existing constitutional amendments, he
stressed.
Senator Leman made a motion to move the Finance version of
SJR 27, version 1-LS0087\K from the Committee with
individual recommendations and attached $1,500 fiscal note
from the Alaska Court System.
Senator Adams objected. A roll call was taken on the
motion.
IN FAVOR: Senator Wilken, Senator P. Kelly, Senator
Phillips, Senator Leman, Co-Chair Torgerson.
OPPOSED: Senator Adams.
The MOTION PASSED: (5-1)
Co-Chair Torgerson stated that SJR 27 was MOVED FROM
COMMITTEE.
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