Legislature(2021 - 2022)BUTROVICH 205
02/09/2022 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB155 | |
| SB129 | |
| SB23 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 119 | TELECONFERENCED | |
| += | HB 155 | TELECONFERENCED | |
| += | SB 129 | TELECONFERENCED | |
| += | SB 23 | TELECONFERENCED | |
SB 23-INITIATIVE SEVERABILITY
1:58:38 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 23
"An Act relating to proposing and enacting laws by initiative."
[SB 23 was previously heard on 4/19/2021.]
1:58:56 PM
At ease
2:01:45 PM
CHAIR HOLLAND reconvened the meeting.
2:02:16 PM
SENATOR JOSH REVAK, Alaska State Legislature, Juneau, Alaska,
speaking as sponsor, paraphrased the sponsor statement.
[Original punctuation provided.]
SB 23 seeks to ensure ballot initiative language that
appears before voters at the ballot box is the same as
the language circulated during the signature-gathering
phase and to restore the legislature's important role
in the initiative process.
Alaska's constitution details a very important right
of our residents - the right to enact legislation
through the voter initiative process. The legislature
also has the right to enact legislation substantially
the same as the proposed initiative thus removing it
from the ballot.
2:03:30 PM
The proposed ballot initiative language must be
submitted to the State of Alaska for review. The
Alaska Department of Law reviews the proposed language
then provides the Lieutenant Governor a recommendation
whether to certify or deny the language.
The Lieutenant Governor's certification is a key step
in the initiative process. Only once certification
happens will the state print petition booklets for
gathering voter signatures. The petitioner then
circulates the booklets to gather signatures and
submits those to the state for verification. Once
signatures are verified, an initiative can be prepared
for the ballot.
Per our constitution, some issues are off-limits for
ballot initiatives and initiatives can only cover one
subject. But while a cursory legal review of language
occurs before the Lieutenant Governor's certification,
it has sometimes been the case that further review
finds constitutional concerns with proposed language.
In those cases, a party can file a lawsuit to force
the issue through the court system. This can happen
simultaneous to the circulation of signature booklets.
2:04:09 PM
Under current law, if a court determines that language
in a proposed initiative is unconstitutional and/or
severed, an amended version of the language can appear
before voters. This results in voters seeing a
different initiative than the one they supported with
their signature. Furthermore, if the courts
revise/sever the language after the legislative review
process, they deny the legislature its right to review
the initiative as revised. The net effect of a court's
severance is that an initiative can move forward to
the voters that is substantially different than the
initial version reviewed by the legislature.
SB 23 would rectify this situation. Under this bill,
if a court determines that language in a proposed
initiative is unconstitutional or severed, the
Lieutenant Governor must reject the entire initiative
petition and prohibit it from appearing on the ballot.
Voters should be assured that language on the ballot
has not changed from the language in the petition
booklets supported with voter signatures and further,
restores the legislature's right to review and enact
substantially similar legislation to stop an
initiative from moving forward.
2:05:34 PM
SENATOR REVAK thanked members for their attention and
willingness to hear SB 23.
2:05:57 PM
SENATOR HUGHES asked the sponsor to review the history of this
bill. She wondered if the late Senator Chris Birch had
previously brought this bill before the body during the last
legislature. She stated her support for SB 23.
2:06:31 PM
SENATOR REVAK responded that then-Senator Chris Birch, now
deceased, introduced Senate Bill 80, which passed the Senate in
the 31st Legislature. He said he sponsored the bill this
legislature because it is an important matter.
2:07:14 PM
CHAIR HOLLAND asked whether SB 23 was identical to Senate Bill
80.
SENATOR REVAK answered yes.
2:07:20 PM
SENATOR HUGHES offered her view that to be true to the voters,
the language for the ballot initiative at the general election
should be the same as the language presented when the registered
voter signed the ballot initiative pamphlet. She appreciated
that Senator Revak continued working on the severability of
ballot initiatives by introducing SB 23.
2:08:11 PM
CHAIR HOLLAND related his understanding that a memo from
Legislative Legal Services dated April 23, 2019, was in members'
packets. He asked the attorneys to respond.
2:08:33 PM
ERIC FJELSTAD, Partner, Perkins Coie, LLP, Anchorage, Alaska,
deferred to Mr. Klein to respond first.
2:08:41 PM
NOAH KLEIN, Attorney, Legislative Legal Counsel, Legislative
Legal Services, Legislative Affairs Agency (LAA), Juneau,
Alaska, reviewed the initiative process set out by art. XI of
the Alaska Constitution. The process starts with an initiative
application filed with the lieutenant governor once signed by
100 sponsors. After conducting a legal review, the lieutenant
governor can certify the application. Once certified, the
initiative must meet specific signature requirements, and if
satisfied, the initiative would be placed on the ballot to be
considered at the next general election.
2:09:31 PM
CHAIR HOLLAND asked whether he could compare the initiative
process to the legislative process. He related his understanding
that one process must not be more restrictive than the other.
2:09:50 PM
MR. KLEIN explained the procedural differences. Bills and
resolutions go through the legislative process and must be voted
on and passed by both bodies. He characterized the initiative
process as being vetted by the lieutenant governor and
potentially the court before being placed on the ballot for
voter approval or denial.
CHAIR HOLLAND asked whether he was familiar with a Legislative
Legal Services memo of 4/23/2019 from Alpheus Bullard,
Legislative Counsel to Senator Kiehl, relating to a
constitutional issue raised by Senate Bill 80.
2:10:55 PM
CHAIR HOLLAND read from page 3 of the legal memo "Under SB 80,
the people would not be able to exercise through the initiative,
the same law-making power as the legislature." He referred to
page 2, paragraph 1 related to the rules governing initiatives.
It asserts that the initiative process may not be more
restrictive than the [rules governing] the law-making power of
the legislature. The subsequent language contains statutory
language. "AS 01.10.030 specifically provides that provisions
may be severed from a bill enacted by the legislature...." He
stated that SB 23 addresses the severability of a bill before it
is enacted. He asked if severability of a bill enacted by the
legislature was comparable to severance before an initiative is
enacted.
2:12:17 PM
MR. KLEIN referred to line 5 of SB [23], prohibiting a
severability clause. It read, "An initiative petition may not
contain a severability clause." He said it would essentially
prohibit an initiative from having that same clause provided by
AS 01.010.030 that is included in all legislation adopted by the
legislature.
2:12:47 PM
SENATOR KIEHL offered his view that the legislature operates
under more restrictive rules than the initiative process since
the legislature cannot obtain a ruling from the courts before
voting and passage of a bill. Yet, in the ballot initiative
process, the people have a better opportunity because they cast
their votes after the court rules on the constitutionality if a
lawsuit ensues. Therefore, the severability of initiatives
benefits the voter.
SENATOR HUGHES characterized this as comparing apples to
oranges. She related her understanding that if a portion of an
initiative is found unconstitutional, it does not stop the
remaining language from going forward. The bill would require
the initiative sponsors to go back and recollect signatures.
However, it does not prevent an initiative from being placed on
the ballot and becoming law. She concluded that the bill was not
prohibitive or restrictive. She emphasized that when a person
signs something, they agree to it in totality. She offered her
support for SB 23.
2:14:48 PM
SENATOR REVAK stated that the intent of the bill was not to
hinder the initiative process for voters. Suppose the initial
paragraph of an initiative sounds compelling, and they sign the
petition, but that language is later found unconstitutional and
removed. In some cases, the final initiative on the ballot, once
the unconstitutional language is removed, would be completely
different than the initiative the registered voters signed. It's
also conceivable that initiative sponsors might deliberately
craft their language in anticipation that the courts will find
it unconstitutional.
SENATOR REVAK noted that a lot of money is involved in the
initiative process, that people make money gathering signatures
on ballot initiatives, often at box stores.
2:16:18 PM
SENATOR MYERS responded to the timing when the courts weighed in
on an initiative or for bills passed by the legislature. He did
not view SB 23 as making the initiative process less restrictive
than the legislative process. In terms of the legislature, when
the legislature passes a law, and the court rules a portion of
it unconstitutional, the severability clause allows the
remainder to become law. Suppose an initiative is voted on and
enacted. If someone sued after the fact and prevailed, the
initiative could be severed. SB 23 would prohibit severing the
language at the critical juncture in the initiative process
after registered voters sign the petition but before they
subsequently vote on the initiative.
2:17:19 PM
CHAIR HOLLAND described the legislative process. When the Senate
passes a bill, it goes to the House for consideration. If the
House makes any changes, it must be returned to the Senate for
concurrence. He offered his view that it should be the same for
an initiative. Suppose the initiative sponsors collect
signatures on one proposal, but the proposal is changed [by the
court]. In that case, the sponsors may need to reaffirm the
registered voter's approval on the revised language.
2:17:54 PM
SENATOR KIEHL offered to provide a better comparison. Suppose a
bill was reported from the Senate Judiciary Committee with his
"do pass" recommendation. He noted a bill must have at least one
"do pass" recommendation to make it to the floor. If the Senate
Finance Committee changes the bill, the bill will not go back to
the Senate Judiciary Committee for him to re-evaluate it. His
only option will be to consider the new language when the bill
comes to the floor of the Senate for a vote. Comparably, when a
voter signs a ballot initiative and the court removes
unconstitutional language, the voter has an opportunity to
reconsider the revised ballot initiative when the proposition is
on the ballot at the next general election.
2:18:46 PM
MR. FJELSTAD stated that he became involved with this issue when
the late Senator Birch raised concerns about the initiative
process. He explained the genesis of Senate Bill 80. He pointed
out the two constituencies: the registered voters who sign an
initiative petition and the legislature's role. First, an issue
of truth in advertising arises when voters sign a ballot
pamphlet thinking they agree to 1, 2, 3, and 4. The legislature
should give credence to it and not assume that if the court
strikes item 4, it would be inconsequential to the voters.
Second, the legislature's role arises under art. XI sec. 4,
which reads, "...If, before the election, substantially the same
measure has been enacted, the petition is void." This
essentially means if the legislature enacts something similar to
the language in the initiative, it will stop the initiative
process. He characterized this as a fundamental right and role
of the legislature. However, he acknowledged that it has been
difficult historically to enact something similar due to
politics. Thus, most initiatives are not cut off and proceed.
MR. FJELSTAD highlighted that if the court takes the worst
provision and severs it from an initiative, it could completely
alter the political situation. The legislature might decide it
could enact something similar. He explained that severability
does not allow it. Under the current process, if the legislature
considers ballot initiative version A, and the court finds a
provision unconstitutional, it becomes a different ballot
initiative version B. He related that version would not come
back to the legislature for consideration.
2:21:39 PM
MR. FJELSTAD stated that the two drivers are the legislative
review and truth in advertising. If the court finds a portion of
a ballot initiative unconstitutional, the process must be
restarted to allow the legislature to review the language that
will go before the voters, not some version that the courts
rewrote.
2:22:03 PM
MR. FJELSTAD turned to the statute mentioned earlier [AS
01.10.030]. He opined that the Alaska Constitution is higher
than the statute that applies to the legislature passing laws.
Finally, he suggested that there isn't any disincentive for
initiative sponsors to draft language constitutionally. Instead,
initiative sponsors continually overreach and rely on the courts
to fix it. He predicted that this practice would continue,
leading to more initiatives with constitutional defects. He
suggested the remedy [in SB 23] is to require initiative
sponsors to start over if the courts find some initiative
provisions are unconstitutional.
2:23:20 PM
SENATOR KIEHL stated that historically, the courts have struck
down some or all provisions of bills passed by the legislature.
He asked what provides any disincentive for the legislature to
pass bills with an unconstitutional but "flashy" part and just
let the courts figure it out.
2:23:52 PM
CHAIR HOLLAND offered to refine the question. He stated that SB
23 relates to the placement of a severed initiative on the
ballot, which implies that the initiative is not yet enacted. He
asked whether it was appropriate for the court to rule on the
law's constitutionality before it became law.
SENATOR KIEHL said that was a good question but a different one.
2:24:22 PM
MR. FJELSTAD offered to respond to Senator Kiehl's question. He
said the legislature has the authority to enact laws that may or
may not be constitutional. The legislature established a process
to address this: if a portion of the legislation is found
unconstitutional, those provisions should be severed, and the
remaining ones become law.
MR. FJELSTAD stated that the genesis of an initiative is
different since the people initiate the process, not the
legislature. Second, the constitutional check vested with the
legislature provides the legislature an opportunity to enact
something that is substantially similar. He remarked that
initiatives challenge the process because they are costly. The
goal of SB 23 is to restore the checks in the process so that
the initiative the legislature reviews is the one that will go
before the voters, not some other version. Further, the
legislature retains the option to pass something substantially
similar and halt the initiative process.
2:26:08 PM
CHAIR HOLLAND asked if the legislature omits a section of the
initiate, whether it would be considered substantially similar.
MR. FJELSTAD responded that the lawyers could debate what that
means since there isn't a lot of authority on substantially
similar. He said he considers it from a common-sense
perspective. If the legislature reviews an initiative that
members concluded would enact poor policy, it would be difficult
for them to enact something substantially similar. He suspected
that was why most efforts to cut off an initiative don't happen.
However, if the potentially unconstitutional language is
removed, it could create a different political dynamic, and
there might be a will of the body to enact something.
2:27:23 PM
SENATOR KIEHL said he appreciated Mr. Fjelstad's concern for the
legislature's political considerations, but the point of the
bill is focused on constitutional considerations. He said he had
heard phrases like a "completely different enactment" He asked
what the courts consider a stricter standard, "substantially
similar," or "unconstitutional," so the language must be struck
down. He related his understanding that "substantially similar"
means that the legislature cannot "turn the language 100 percent
upside down." He suggested that the two attorneys could help
members better understand this.
MR. FJELSTAD deferred to Mr. Klein.
2:28:28 PM
MR. KLEIN responded that he has not analyzed whether the court's
two tests would provide a broader or narrower standard. He was
unsure whether the court had ever explicitly compared the two
tests. The two tests the court applies are the same ones the
court applies when reviewing "substantially similar" legislation
enacted by the legislature to prevent an initiative from being
placed on the ballot. He cautioned that this is different than
the test the court applies when determining whether or not
unconstitutional provisions can be severed. To apply the
substantially same test, the court must first determine the
scope of the subject matter or if the legislature has greater or
lesser latitude, depending on whether the subject matter is
broad or narrow. Next, the court must consider whether the
general purpose of the legislation is the same as the general
purpose of the initiative. Finally, the court must consider
whether the means by which that purpose is effectuated is the
same in both legislation and the initiative. Again, that's the
test for determining whether legislation adopted by the
legislature is essential under art. XI, sec. 4.
2:29:41 PM
MR. KLEIN said in the cases that the court has severed
provisions of an initiative, it applied a three-part test based
on the Alaska Supreme Court decision in McAlpine v. University
of Alaska. He paraphrased a portion of the decision:
"... when the requisite number of voters have already
subscribed to an initiative, a reviewing court should
sever an impermissible portion of the proposed bill
when the following conditions are met: (1) standing
alone, the remainder of the proposed bill can be given
legal effect; (2) deleting the impermissible portion
would not substantially change the spirit of the
measure;[26] and (3) it is evident [*95] from the
content of the measure and the circumstances
surrounding its proposal that the sponsors and
subscribers would prefer the measure to stand as
altered, rather than to be invalidated in its
entirety.
2:31:11 PM
SENATOR KIEHL stated that it makes the point that a completely
different measure cannot be taken before the voters.
2:31:22 PM
At ease
2:31:40 PM
CHAIR HOLLAND reconvened the meeting. He asked the attorneys if
the legislature's right to review initiatives under the Alaska
Constitution, art. XI, sec. 4 supersedes art. XII, sec. 11. In
other words, he asked whether art. XII was subject to the
limitations of art. XI.
2:32:18 PM
MR. KLEIN said he was unsure. Further, he was unsure whether the
court had ever addressed it. The Alaska Constitution, art. XII,
Sec. 11 question was relating that the legislature can simply
say that the initiative can't contain a severability clause. The
analysis in McAlpine v. University of Alaska also implied the
people's right to legislate via initiative includes
severability. It includes the benefit that the court will sever
rather than force the sponsors to go through the process again.
While McAlpine was applying a narrow test for severability when
an initiative meets that standard, the court is advocating for
that to happen. It's saying that the people's right is worth
justifying. It lends to the possibility that the people, the
sponsors, have a constitutional right included in the right to
initiate to have an initiative severed.
2:33:49 PM
CHAIR HOLLAND held SB 23 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 155 SJUD Amendment B.1.pdf |
SJUD 2/9/2022 1:30:00 PM |
HB 155 |
| HB 155 SJUD Amendment B.2.pdf |
SJUD 2/9/2022 1:30:00 PM |
HB 155 |
| SB 129 SJUD Amendment O.2.pdf |
SJUD 2/9/2022 1:30:00 PM |
SB 129 |
| SB 129 SJUD Amendment O.6.pdf |
SJUD 2/9/2022 1:30:00 PM |
SB 129 |
| SB 129 SJUD Amendment O.7.pdf |
SJUD 2/9/2022 1:30:00 PM |
SB 129 |
| SB 23 Sponsor Statement.pdf |
SJUD 2/9/2022 1:30:00 PM SSTA 3/9/2021 3:30:00 PM |
SB 23 |
| SB 23 Research - NCSL States that Allow Severability Clauses in Ballot Initiatives.pdf |
SJUD 2/9/2022 1:30:00 PM SSTA 3/9/2021 3:30:00 PM |
SB 23 |
| SB 23 Legal Memo.pdf |
SJUD 2/9/2022 1:30:00 PM |
SB 23 |