Legislature(2005 - 2006)BELTZ 211

02/22/2005 03:30 PM Senate STATE AFFAIRS


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
*+ SB 39 BALLOT PROPOSITIONS AND TITLES TELECONFERENCED
Heard & Held
*+ SB 95 COLLECTION OF DNA/USE OF FORCE TELECONFERENCED
Heard & Held
*+ SB 104 PERMANENT FUND DIVIDEND FRAUD TELECONFERENCED
Heard & Held
Bills Previously Heard/Scheduled
                                                                                                                                
             SB  39-BALLOT PROPOSITIONS AND TITLES                                                                          
                                                                                                                                
CHAIR THERRIAULT announced SB 39,  sponsored by Senator Elton, to                                                               
be  the first  order of  business. He  noted the  blank committee                                                               
substitute  (CS) and  asked the  sponsor which  version he  would                                                               
speak to.                                                                                                                       
                                                                                                                                
SENATOR KIM ELTON,  prime sponsor, replied he would  speak to the                                                               
blank CS  and motioned to adopt  \F version SB 39  as the working                                                               
document. There being no objection, it was so ordered.                                                                          
                                                                                                                                
3:49:32 PM                                                                                                                    
                                                                                                                                
Last year,  he explained, more  time was spent talking  about the                                                               
specific language  describing a  few ballot initiatives  than was                                                               
spent on the underlying policy. SB  39 is an effort to get beyond                                                               
that  and de-politicize  the process  through the  creation of  a                                                               
five member advisory panel.                                                                                                     
                                                                                                                                
The  lieutenant  governor would  appoint  two  proponents of  the                                                               
initiative  or  referenda  and   two  opponents.  The  lieutenant                                                               
governor would  also appoint  a fifth and  neutral member  from a                                                               
slate  that was  prepared by  the  Chief Justice  of the  Supreme                                                               
Court.  With  help  from state  attorneys,  the  committee  would                                                               
prepare the impartial ballot title  and proposition. In addition,                                                               
timelines  would  be  established  so  that  deadlines  that  are                                                               
inherent in any initiative process don't become an issue                                                                        
                                                                                                                                
The  constitution  is clear  that  the  lieutenant governor  will                                                               
prepare the  ballot language so  nothing in  SB 39 forces  him or                                                               
her to  use the  language the panel  develops. It  does, however,                                                               
provide  that if  different  language  is used  he  or she  would                                                               
outline why  the language  is different in  the pamphlet  that is                                                               
sent to all Alaska voters.                                                                                                      
                                                                                                                                
He stressed  that the genesis  of the  bill goes back  beyond the                                                               
previous  election to  when he  was the  chief policy  advisor to                                                               
former  Lieutenant Governor  Terry Miller  more than  two decades                                                               
ago.                                                                                                                            
                                                                                                                                
     I  can tell  you that  the most  difficult issues  that                                                                    
     were dealt with in  that lieutenant governor's office -                                                                    
     and  I suspect  in  each of  the subsequent  lieutenant                                                                    
     governor's office -  is how you do  the ballot language                                                                    
     because the  automatic assumption of voters  is that if                                                                    
     the ballot language is coming  from an elected official                                                                    
     who  is elected  on  a partisan  basis -  automatically                                                                    
     people have  filters that go up.  Especially the people                                                                    
     who  may be  behind the  initiatives -  and it  is very                                                                    
     difficult to get  beyond this. This is a  way, I think,                                                                    
     that  helps lieutenant  governors  because  it can  de-                                                                    
     politicize that ballot language issue.                                                                                     
                                                                                                                                
CHAIR THERRIAULT noted that the  court likes to maintain a bright                                                               
line so  he was  curious whether any  discussion had  taken place                                                               
regarding  the court  participating in  what could  be the  swing                                                               
vote on language it might ultimately pass judgment on.                                                                          
                                                                                                                                
SENATOR ELTON replied  he hadn't had any direct  contact, but the                                                               
model is used  in other instances such as  the Legislative Ethics                                                               
Committee.  Certainly  the  court   wouldn't  want  to  select  a                                                               
proponent or an opponent, but he  thought the court would want to                                                               
avoid  "any  suggestion of  bias  that  would  kick the  work  on                                                               
drafting ballot language into their system."                                                                                    
                                                                                                                                
CHAIR THERRIAULT referenced the  Legislative Ethics Committee and                                                               
said the court has made it clear  that it wouldn't act as a super                                                               
parliamentarian  and interject  itself  into the  operation of  a                                                               
separate branch  of government. A  better example,  he suggested,                                                               
would be re-districting.  Those plans always end up  in the court                                                               
system, he said.                                                                                                                
                                                                                                                                
SENATOR ELTON replied  it's a close and  interesting question and                                                               
he thought the  court would see it as a  balance. If suggesting a                                                               
slate  of   potential  advisory  panel  candidates   reduces  the                                                               
possibility  of the  court  ending up  with  the ballot  language                                                               
issue in  their laps, the  court would probably view  that effort                                                               
as a savings of time and litigation costs.                                                                                      
                                                                                                                                
He said  he wanted  to correct  a part  of the  sponsor statement                                                               
related to  cost of printing  last year. Media  reports indicated                                                               
the cost  of ballot  printing was about  $300,000, but  the costs                                                               
were actually in the neighborhood of $240,000 to $245,000.                                                                      
                                                                                                                                
SENATOR  THOMAS WAGONER  said he  understood the  intent, but  it                                                               
comes down to the fact  that the lieutenant governor could ignore                                                               
statute and proceed with his or her own language anyway.                                                                        
                                                                                                                                
SENATOR  ELTON  agreed  the   constitution,  which  grants  final                                                               
authority to  the lieutenant  governor, trumps  statute. However,                                                               
SB 39  sets up  a process  to create ballot  language and  in the                                                               
future  he suspects  lieutenant governors  will be  thankful that                                                               
the  process is  not seen  through a  partisan filter.  There's a                                                               
strong possibility  that the lieutenant  governor will  trump the                                                               
language developed  by the  advisory panel at  some point  in the                                                               
future, but that probably won't happen often.                                                                                   
                                                                                                                                
3:58:36 PM                                                                                                                    
                                                                                                                                
SENATOR CHARLIE  HUGGINS asked if  it means a  separate committee                                                               
for each initiative.                                                                                                            
                                                                                                                                
SENATOR  ELTON  replied there  would  be  potential for  multiple                                                               
committees.                                                                                                                     
                                                                                                                                
SENATOR  HUGGINS  suggested  this   could  be  an  administrative                                                               
nightmare  and  that he's  sure  that  Lieutenant Governor  Leman                                                               
learned a great  deal during this last  election cycle. Sometimes                                                               
corrective action  is more  evil than  what transpired,  he said,                                                               
and any time the court becomes involved it opens Pandora's box.                                                                 
                                                                                                                                
SENATOR ELTON said his brief  response is that there is certainly                                                               
an  associated learning  curve and  most elected  officials learn                                                               
from  experience.   More  than  likely  the   present  Lieutenant                                                               
Governor Leman is  more sensitive to the issues than  he may have                                                               
been two years ago, but  future lieutenant governors will also be                                                               
faced with a learning curve.                                                                                                    
                                                                                                                                
"The  worst thing  that could  possibly happen  is for  arguments                                                               
about ballot  language to get  into the judicial system.  That, I                                                               
think,  is  a  bigger  problem than  having  a  judicial  officer                                                               
appoint  one  of  five  people  to  try  and  prevent  that."  It                                                               
shouldn't  be   viewed  as  constraining  the   behavior  of  the                                                               
lieutenant governor because the  constitution doesn't allow that,                                                               
but this approach  to ballot language can  constrain the behavior                                                               
of  initiative sponsors.  It  would make  it  more difficult  for                                                               
initiative  sponsors  to  go  to court  and  argue  about  ballot                                                               
language  that  was  approved  by  a  non-partisan  and  balanced                                                               
committee.                                                                                                                      
                                                                                                                                
SENATOR  HUGGINS  commented   he  isn't  warm  to   the  idea  of                                                               
committees looking after the lieutenant governor.                                                                               
                                                                                                                                
CHAIR THERRIAULT read page 2, lines  5,6, and 7 and said it means                                                               
the lieutenant governor  may choose to make  adjustments that are                                                               
allowed  by the  statute.  It doesn't  mean that  he  or she  may                                                               
ignore the  statute. He noted  the language appears on  that page                                                               
as part of AS  15.45.180 then at the top of page 3  as part of AS                                                               
15.45.410 and  on the bottom of  page 3 as part  of AS 15.50.010.                                                               
He  questioned why  the  language is  repeated  in statute  three                                                               
times.                                                                                                                          
                                                                                                                                
4:03:12 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON  replied he believes it  was an effort to  make the                                                               
different components  of the election  statutes reflect  the same                                                               
notion. He asked his staff to confirm that.                                                                                     
                                                                                                                                
JESSE KIEHL,  staff to Senator  Elton, elaborated  explaining the                                                               
first  reference  amends  the initiative  laws,  the  second  the                                                               
referendum  laws  and the  third  reference  amends the  laws  on                                                               
constitutional amendments.                                                                                                      
                                                                                                                                
4:05:12 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked whether he had anything else to add.                                                                     
                                                                                                                                
MR. KIEHL replied Senator Elton  addressed all the primary points                                                               
but a  point to  emphasize further is  clear and  early deadlines                                                               
for work done on ballot  titles and propositions. "While the bill                                                               
is intended  to reduce the  likelihood of lawsuits,  certainly if                                                               
something should ... go to court,  there is adequate time for the                                                               
courts to address the question."                                                                                                
                                                                                                                                
CHAIR THERRIAULT asked about the suggested date changes.                                                                        
                                                                                                                                
SENATOR ELTON  said he would  ask Mr.  Keihl to explain  that and                                                               
members could  reference the document  on deadlines found  in the                                                               
packets.                                                                                                                        
                                                                                                                                
MR.  KIEHL explained  the original  version of  the bill  created                                                               
deadlines that counted backward 70  and 80 days from Election Day                                                               
to give the  Division of Elections time to print  ballots even if                                                               
there  were a  court  challenge. During  review  they found  that                                                               
existing statute  for constitutional amendments says  that within                                                               
30 days  after a  legislative session  in which  a constitutional                                                               
amendment is  proposed ends,  or 30  days after  a constitutional                                                               
convention  in   which  an  amendment   is  proposed   ends,  the                                                               
lieutenant  governor must  prepare the  title. The  CS says,  "30                                                               
days after the legislature last had  a crack at it, the committee                                                               
must meet and do its work and the lieutenant governor approve."                                                                 
                                                                                                                                
The timeframe  for referenda is  shorter so the timeline  for the                                                               
ballot title must be shortened  to get everything to the Division                                                               
of  Elections in  time to  print the  ballot. That  limit is  not                                                               
later than 21 days after the  date the petition is filed. Instead                                                               
of the 10-day timeframe the  lieutenant governor is given to make                                                               
any   necessary  changes   for  initiatives   and  constitutional                                                               
amendments,  the   lieutenant  governor  is  given   5  days  for                                                               
referenda. The reasoning  is that when referenda can  be voted on                                                               
in the  same year that the  signature is filed, the  timeframe is                                                               
tight.                                                                                                                          
                                                                                                                                
4:09:55 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT noted a number of people wanted to testify.                                                                    
                                                                                                                                
SENATOR ELTON mentioned the two zero fiscal notes.                                                                              
                                                                                                                                
CHAIR THERRIAULT acknowledged the fiscal  notes and called on Mr.                                                               
Feldman from an off net site.                                                                                                   
                                                                                                                                
4:11:17 PM                                                                                                                    
                                                                                                                                
JEFF  FELDMAN  advised  he  was part  of  the  recent  litigation                                                               
involving the  ballot language and when  he first heard of  SB 39                                                               
he  wasn't  sure whether  it  was  a  good  fix to  the  problem.                                                               
Ultimately  he   came  to  view   the  measure   as  non-partisan                                                               
legislation.                                                                                                                    
                                                                                                                                
He made  the point that  this is a  recurring issue in  the state                                                               
and that  a number of  lieutenant governors have  been defendants                                                               
in  lawsuits  brought because  of  action  they may  have  taken.                                                               
Certainly, Lieutenant  Governor Leman's  situation last  year was                                                               
not unique  and most  lieutenant governors  have had  to struggle                                                               
with this issue.                                                                                                                
                                                                                                                                
He  suggested two  issues were  worth  consideration. First,  the                                                               
present  system  is expensive  and  isn't  limited to  reprinting                                                               
costs.  Litigation expenses  are likely  to  be in  the high  six                                                               
figures.  The  second point  is  that  the current  system  makes                                                               
everyone associated with the process look bad.                                                                                  
                                                                                                                                
Referencing the  comment made  about not  wanting a  committee to                                                               
make  decisions  about  ballot  language, he  said  that  is  the                                                               
current  system.  The  lieutenant governor  doesn't  appoint  the                                                               
committee;  "ultimately five  people wearing  black robes  got to                                                               
decide what the language had to be."                                                                                            
                                                                                                                                
Although committees  don't move as  fast as the  individual, they                                                               
do move  more efficiently and  less expensively than  the process                                                               
used last  year, he  asserted. This process  would also  give any                                                               
lieutenant governor  help and  guidance and  make it  more likely                                                               
that language that is settled  upon would be impartial, accurate,                                                               
and the  product of both sides  of an issue. Currently,  once the                                                               
lieutenant governor  decides on  the language, proponents  of the                                                               
initiative have  no opportunity for  review ahead of time  and no                                                               
opportunity  to communicate  with the  lieutenant governor  as to                                                               
whether they like  or don't like it. This suggested  fix is worth                                                               
serious consideration, he concluded.                                                                                            
                                                                                                                                
SENATOR WAGONER noted that legislation  passed last year relating                                                               
to the initiative  process should slow the  number of initiatives                                                               
going to ballot, but he didn't  think this measure would keep the                                                               
initiative process out of the  court system. "When you've got two                                                               
sides arguing the issue, I think  you're going to end in court 90                                                               
percent of the time anyway," he remarked.                                                                                       
                                                                                                                                
4:18:44 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT asked Joe Geldhof to come forward.                                                                             
                                                                                                                                
JOE GELDHOF,  Juneau attorney, said  he was testifying  on behalf                                                               
of himself and  that he does have some  initiative experience. He                                                               
urged members to  develop a CS because there  are some meaningful                                                               
points that  would be  useful to the  lieutenant governor  in the                                                               
initiative process.                                                                                                             
                                                                                                                                
He  found Lieutenant  Governor Leman's  office  to be  completely                                                               
professional  when   he  dealt  with   it  on  the   cruise  ship                                                               
initiative. Nonetheless, providing  both proponents and opponents                                                               
an  opportunity  to  preview  the language  to  be  selected,  as                                                               
proposed  in  SB  39,  could give  the  lieutenant  governor  the                                                               
ability to  receive feedback quickly and  to gain a feel  for how                                                               
the  language  might  be  received. Otherwise  you  end  up  with                                                               
language  that comes  through the  lieutenant governor's  office,                                                               
but  frequently  from the  attorney  general's  office and  "It's                                                               
often cobbled together in a  hasty fashion without full regard to                                                               
what's really going on."                                                                                                        
                                                                                                                                
Finally,  he urged  members to  consider a  CS that  has a  short                                                               
review process so an opponent  and a proponent vet the lieutenant                                                               
governor  and the  attorney general  summary before  the booklets                                                               
are  printed and  released to  the public.  That might  avoid the                                                               
temptation  to  litigate after  the  booklets  are collected  and                                                               
provide opportunity for a better end product.                                                                                   
                                                                                                                                
4:22:38 PM                                                                                                                    
                                                                                                                                
SENATOR HUGGINS asserted  that unfortunately, "ballot initiatives                                                               
all  too  often  are  hyperizing and  polarizing  by  their  very                                                               
nature."                                                                                                                        
                                                                                                                                
MR.  GELDHOFF replied  he really  isn't a  fan of  the initiative                                                               
process and  he views  initiatives as  the result  of legislative                                                               
gridlock.                                                                                                                       
                                                                                                                                
SENATOR   HUGGINS  suggested   this  could   result  in   greater                                                               
protraction.                                                                                                                    
                                                                                                                                
MR.  GELDHOF replied  it could  happen  that way  but, "give  the                                                               
lieutenant governor  at least a  limited chance to have  a little                                                               
input  from the  people out  there hammering  on it....  give the                                                               
lieutenant governor  a shot  of what's right  and wrong  with the                                                               
language."                                                                                                                      
                                                                                                                                
4:25:40 PM                                                                                                                    
                                                                                                                                
CHAIR  THERRIAULT agreed  that  in the  past  people have  gotten                                                               
thousands   of  signatures   on  language   to  laws   that  were                                                               
structurally  flawed.  Sometimes  the  petitioners  knew  it  was                                                               
flawed and  suggested they would fix  it after the fact.  He said                                                               
it seems as though the argument  is centered more on the language                                                               
that describes  the law  than the language  that is  proposed for                                                               
the  statute  books.  When  you  look  at  the  proposed  summary                                                               
statement that isn't the law itself, he said.                                                                                   
                                                                                                                                
MR.  GELDHOFF agreed  then said  that  the public  really has  an                                                               
amazing capacity to know what's  going on. The Legislature has an                                                               
obligation  to make  it as  clear as  possible and  then let  the                                                               
public do what they're going to  do. "Let people like Mr. Feldman                                                               
come up with a better work product."                                                                                            
                                                                                                                                
CHAIR  THERRIAULT said  he was  thinking about  the property  tax                                                               
issue from three  or four years ago. The proposed  law was flawed                                                               
and didn't work.  You could argue about the  summary statement on                                                               
the  booklet  and  you  could  argue about  the  summary  on  the                                                               
ballots,  but the  process doesn't  provide  for a  check on  the                                                               
proposed law itself to make sure it works.                                                                                      
                                                                                                                                
MR. GELDHOFF  replied initiatives  are just the  direct enactment                                                               
of legislation so  the same standards should be used  that you as                                                               
the presiding officer of a committee would consider.                                                                            
                                                                                                                                
CHAIR  THERRIAULT  said they  don't  always  get  it right  as  a                                                               
committee,  but they  have the  committee process,  Department of                                                               
Law  attorneys,  legislative  attorneys,  Majority  members,  and                                                               
Minority  members. Each  provides a  set  of eyes  coming from  a                                                               
different perspective and looking  for mistakes. By contrast what                                                               
is  approved for  initiatives has  frequently been  reviewed from                                                               
just one perspective and the summary may not be accurate.                                                                       
                                                                                                                                
4:29:55 PM                                                                                                                    
                                                                                                                                
SENATOR ELTON said perhaps the  committee should consider a CS to                                                               
include the  summary language for  petitions. With regard  to the                                                               
property tax initiative,  he said it wasn't an issue  of what was                                                               
said on  the summary or what  would have appeared on  the ballot,                                                               
but it could have become an  issue because there was a structural                                                               
flaw  to the  law they  were  proposing. A  committee could  have                                                               
addressed the issue  by saying, "This doesn't do what  it says it                                                               
does."                                                                                                                          
                                                                                                                                
CHAIR THERRIAULT asked Annette Kreitzer to come forward.                                                                        
                                                                                                                                
ANNITTE KREITZER,  chief of staff  for Lieutenant  Governor Loren                                                               
Leman,  said she  would speak  in generalities  since she  hadn't                                                               
seen the sponsor statement or the proposed CS.                                                                                  
                                                                                                                                
She said  she distributed pages from  Lieutenant Governor Leman's                                                               
web site  titled "Understanding Initiatives" because  it includes                                                               
timelines of action on initiatives. Furthermore:                                                                                
                                                                                                                                
     Lieutenant  Governor  Leman   believes  the  initiative                                                                    
     process  is an  important  part  of Alaska's  political                                                                    
     system.  It allows  Alaskans direct  access to  writing                                                                    
     and approving  certain laws  without going  through the                                                                    
     legislative process.                                                                                                       
                                                                                                                                
     SB 39 isn't necessary.  Any lieutenant governor walks a                                                                    
     fine line  between proponents of an  initiative and the                                                                    
     opponents.  As   far  as  my  experience   goes,  we've                                                                    
     received  comments  on  both   sides  of  almost  every                                                                    
     initiative.  The lieutenant  governor takes  input from                                                                    
     many including the Department of  Law. We don't operate                                                                    
     in a vacuum.                                                                                                               
                                                                                                                                
     Under SB  39, the lieutenant governor  still can change                                                                    
     the committee's recommendation and  I'm sure, as others                                                                    
     have said  before me, that  that's in the  bill because                                                                    
     to   do  otherwise   would  likely   render  the   bill                                                                    
     unconstitutional.                                                                                                          
                                                                                                                                
MS.  KREITZER  took  issue  with  Mr.  Feldman's  statement  that                                                               
opponents and proponents  do not have an  opportunity to comment.                                                               
The  initiative he  was referencing  came at  the same  time that                                                               
legislation  was being  passed so  Lieutenant Governor  Leman was                                                               
very involved. When  he was asked about that  legislation he said                                                               
it was  substantially similar to  the proposed  initiative. Three                                                               
days  prior to  printing the  special advance  ballots the  court                                                               
ruled that the initiative would have to go on the ballot.                                                                       
                                                                                                                                
In terms of  timing she made the point that  if you're vulnerable                                                               
to  a lawsuit  at any  point  you wouldn't  be able  to meet  the                                                               
timelines set forth in  the bill. "The bias is in  the eye of the                                                               
beholder. Proponents  don't think  we're doing enough  to advance                                                               
their initiative and opponents don't  think we're doing enough to                                                               
outline perceived flaws in an initiative."                                                                                      
                                                                                                                                
Current  law allows  judicial review  and  judicial review  would                                                               
also  be   available  under  SB  39.   The  proposed  five-member                                                               
committee wouldn't  have fewer biases than  an elected lieutenant                                                               
governor and an appointed attorney general, she concluded.                                                                      
                                                                                                                                
4:34:52 PM                                                                                                                    
                                                                                                                                
CHAIR THERRIAULT  referenced the  fiscal notes and  asked Senator                                                               
Elton who would  pay the committee expenses as far  as travel and                                                               
per diem.                                                                                                                       
                                                                                                                                
SENATOR ELTON  replied he anticipates  some travel  costs because                                                               
it's likely  that the committee  would have to  meet face-to-face                                                               
at least initially. He suggested  that little investment up front                                                               
would save a lot of money later on.                                                                                             
                                                                                                                                
CHAIR  THERRIAULT noted  the fiscal  notes from  the Division  of                                                               
Elections and  the Department  of Law and  asked if  he envisions                                                               
that  the   expenses  would  be   covered  from   the  lieutenant                                                               
governor's budget.                                                                                                              
                                                                                                                                
SENATOR  ELTON  replied  it  could happen  that  way.  During  an                                                               
election cycle a  lot of the lieutenant governor's  staff time is                                                               
used on  issues such  as ballot  language, temporary  hiring, and                                                               
voter pamphlet contracting. He anticipates  that it would be part                                                               
of the biannual cycle for budgeting for elections.                                                                              
                                                                                                                                
CHAIR THERRIAULT questioned  whether they would have  to plan for                                                               
additional costs.                                                                                                               
                                                                                                                                
SENATOR  ELTON  replied  expenses   would  probably  be  slightly                                                               
higher. Expenses  would depend on  the number of  initiatives and                                                               
perhaps the volatility of some  of the initiatives. In conclusion                                                               
he  emphasized  that  it  will  be  easy  to  identify  costs  to                                                               
accomplish SB 39 but impossible to identify the accrued savings.                                                                
                                                                                                                                
There was no further testimony or questions.                                                                                    
                                                                                                                                
CHAIR THERRIAULT announced he would hold SB 39 in committee.                                                                    

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