Legislature(1993 - 1994)
02/15/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 15, 1993
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Pete Kott
Rep. Gail Phillips
Rep. Joe Green
Rep. Cliff Davidson
Rep. Jim Nordlund
MEMBERS ABSENT
Rep. Jeannette James, Vice-Chair
COMMITTEE CALENDAR
HJR 11: Proposing an amendment to the Constitution of the
State of Alaska relating to repeal of regulations
by the legislature.
PASSED OUT OF COMMITTEE
HJR 1: Proposing amendments to the Constitution of the
State of Alaska authorizing the use of the
initiative to amend the Constitution of the State
of Alaska by approval of two-thirds of the votes
cast on the proposed amendment.
HEARD AND HELD IN COMMITTEE
WITNESS REGISTER
GAYLE HORETSKI
Committee Counsel
House Judiciary Committee
State Capitol, Room 120
Juneau, Alaska 99801-1182
Phone: 465-4990
Position Statement: Answered committee questions
SANDY NUSBAUM
Legislative Aide
Rep. Gail Phillips
State Capitol, Room 216
Juneau, Alaska 99801-1182
Phone: 465-2689
Position Statement: Explained HJR 11
CHIP THOMA
Juneau, Alaska 99801
Position Statement: Supported HJR 1
REP. GAIL PHILLIPS
Alaska State Legislature
State Capitol, Room 216
Juneau, Alaska 99801-1182
Phone: 465-2689
Position Statement: Prime Sponsor of HJR 1
THOMAS B. STEWART
925 Calhoun Avenue
Juneau, Alaska 99801
Phone: 586-1220, 463-4741
Position Statement: Opposed HJR 1
PREVIOUS ACTION
BILL: HJR 11
SHORT TITLE: REPEAL OF REGULATIONS BY LEGISLATURE
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,Brice
TITLE: Proposing an amendment to the Constitution of the
State of Alaska relating to repeal of regulations by the
legislature.
JRN-DATE JRN-PG ACTION
01/11/93 24 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/93 24 (H) STATE AFFAIRS, JUDICIARY,
FINANCE
01/21/93 (H) STA AT 08:00 AM CAPITOL 102
01/21/93 (H) MINUTE(STA)
01/23/93 (H) STA AT 08:00 AM CAPITOL 102
01/23/93 (H) MINUTE(STA)
01/30/93 (H) STA AT 08:00 AM CAPITOL 102
01/30/93 (H) MINUTE(STA)
02/01/93 196 (H) STA RPT 5DP 1NR
02/01/93 196 (H) DP: VEZEY, ULMER, OLBERG,
G.DAVIS,KOTT
02/01/93 196 (H) NR: B.DAVIS
02/01/93 196 (H) -FISCAL NOTE (GOV) 2/1/93
02/08/93 (H) MINUTE(ARR)
02/12/93 (H) JUD AT 01:00 PM CAPITOL 120
02/15/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HJR 1
SHORT TITLE: USE OF INITIATIVE TO AMEND CONSTITUTION
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) PHILLIPS,Bunde
TITLE: Proposing amendments to the Constitution of the State
of Alaska authorizing the use of the initiative to amend the
Constitution of the State of Alaska by approval of
two-thirds of the votes cast on the proposed amendment.
JRN-DATE JRN-PG ACTION
01/04/93 21 (H) PREFILE RELEASED
01/11/93 21 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/93 21 (H) STATE AFFAIRS, JUDICIARY,
FINANCE
01/19/93 (H) STA AT 08:00 AM CAPITOL 102
01/19/93 (H) MINUTE(STA)
01/21/93 (H) STA AT 08:00 AM CAPITOL 102
01/21/93 (H) MINUTE(STA)
01/23/93 (H) STA AT 08:00 AM CAPITOL 102
01/23/93 (H) MINUTE(STA)
01/26/93 (H) MINUTE(STA)
01/30/93 (H) STA AT 08:00 AM CAPITOL 102
01/30/93 (H) MINUTE(STA)
01/30/93 (H) MINUTE(STA)
02/01/93 195 (H) STA RPT 4DP 2DNP
02/01/93 195 (H) DP: VEZEY, OLBERG, G.DAVIS, KOTT
02/01/93 195 (H) DNP: ULMER, B.DAVIS
02/01/93 196 (H) -FISCAL NOTE (GOV) 2/1/93
02/01/93 196 (H) REFERRED TO JUDICIARY
02/12/93 (H) JUD AT 01:00 PM CAPITOL 120
02/15/93 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-13, SIDE A
Number 000
CHAIRMAN PORTER called the House Judiciary Committee meeting
to order at 1:15 p.m. on Monday, February 15, 1993. A
quorum was present.
CHAIRMAN PORTER announced that two resolutions were on the
calendar: HJR 1, Use of Initiative to Amend the
Constitution, and HJR 11, Repeal of Regulations by the
Legislature. Before beginning the hearing on the two
resolutions, Chairman Porter announced that the Speaker of
the House had requested that the Judiciary Committee waive
its referral on HB 134, An Act relating to temporary
transfers of commercial fisheries entry permits. He noted
that the bill had been referred to four committees. He
explained that the bill would allow medically infirm limited
entry permit holders, aged 65 or over, who had held the
permit for at least ten years to transfer their permits on a
year-to-year basis to other individuals.
CHAIRMAN PORTER commented that he would not mind waiving the
bill from committee, as he did not see any burning legal
questions associated with the bill, and because it would be
heard by three other committees in the House.
Number 038
REP. DAVIDSON objected to the proposed action. He added
that he was familiar with the bill from previous years.
Rep. Davidson said that more and more limited entry permits
were becoming private property, which invited the Internal
Revenue Service to become part of the process. He felt that
this would lead to a lack of control over the state's
resources over the long term.
Number 061
REP. PHILLIPS asked the Chairman which other committees HB
134 had been referred to.
Number 067
CHAIRMAN PORTER said that the bill had been referred to the
Fisheries, Resources, and Finance Committees, in addition to
the Judiciary Committee.
Number 072
REP. PHILLIPS moved to waive the bill from the Judiciary
Committee based on the thorough review that she felt it
would receive in its other three committees of referral.
Number 080
REP. DAVIDSON maintained his objection to the waiver. He
said that HB 134 would allow a person to hold on to a permit
until his or her death. He asked what would happen in the
event that a permit was in another person's name at the time
the original permit holder died. He questioned who would
get the permit in that case.
Number 104
CHAIRMAN PORTER said that HB 134 would not affect that
particular question.
REP. DAVIDSON asked how that could be.
CHAIRMAN PORTER said that the bill would allow the permit
holder, if he or she met the other criteria, to let someone
else use the permit instead, on a year-to-year basis. If
the permit holder were to die, the question of transference
would be the same as it was now, he added.
Number 123
REP. NORDLUND asked who sponsored the bill.
CHAIRMAN PORTER replied that Rep. Moses was the sponsor of
HB 134. A roll call vote on whether members supported
waiving HB 134 from the Judiciary Committee was taken, with
five yea votes and 1 nay vote.
Number 150
REP. DAVIDSON asked if HB 134 was currently before the
committee.
CHAIRMAN PORTER said that it was not.
REP. DAVIDSON said that bills were typically not waived from
a committee until they were before that committee.
MS. GAYLE HORETSKI, COMMITTEE COUNSEL FOR THE HOUSE
JUDICIARY COMMITTEE, said that Tam Cook from the Legislative
Legal Services Division had indicated that it was
permissible to waive a bill from committee although the bill
had not yet reached that particular committee.
Number 163
CHAIRMAN PORTER said that he had wanted to discuss the
waiver with the committee members, although he, as the
chairman, could have waived it without their knowledge or
consent. He said he would ask that HB 134 be waived from
committee the following day during the floor session.
HJR 11: REPEAL OF REGULATIONS BY LEGISLATURE
CHAIRMAN PORTER noted that Rep. Phillips had been called
away, but said her aide, Sandy Nusbaum, would appear before
the committee to testify on HJR 11.
Number 191
SANDY NUSBAUM, LEGISLATIVE AIDE TO REP. GAIL PHILLIPS, read
Rep. Phillips' testimony on HJR 11. (A copy is on file in
the House Judiciary Committee.) Ms. Nusbaum said that HJR
11 was a proposal to place a constitutional amendment before
the voters that would allow the legislature to take action
on regulations promulgated by state agencies that might not
properly implement laws passed by the legislature.
MS. NUSBAUM mentioned that the 1st Alaska Legislature
allowed for annulment of regulations, but a 1980 Supreme
Court decision held that the legislature could overturn
regulations by passing a bill. However, she noted that a
bill could be vetoed by the governor or repealed by a
referendum. A resolution annulling a regulation could not.
MS. NUSBAUM added that adoption of a joint resolution
annulling a regulation would require the approval of a
simple majority of each chamber. She commented that many
regulations did conform to and support laws passed by the
legislature, but sometimes regulations went far beyond the
scope and intent of the law.
MS. NUSBAUM said that she often recommended that legislators
look at the regulations that had been adopted to conform
with their own bills that had been enacted into law. She
noted that most legislators never looked at the regulations.
MS. NUSBAUM stated that once in effect, regulations had all
the force of law, although no elected officials had approved
them. She said that Rep. Phillips believed that the framers
of the Alaska constitution never intended that any
governmental body, except the legislature, had the power to
make laws.
MS. NUSBAUM spoke of the system of checks and balances in
our system of government. One area that lacked those checks
and balances was that of administrative regulations. She
said HJR 11 would add regulations to the areas of government
that were part of the checks and balances system.
MS. NUSBAUM said that this resolution had been before the
17th Alaska Legislature. It passed the Senate unanimously,
was reported out of the House State Affairs and House
Judiciary Committees with unanimous "do pass"
recommendations, and received an endorsement from the Joint
Committee on Administrative Regulation Review. It failed to
be taken up for a vote on the House floor in the final
minutes of the session.
MS. NUSBAUM called the members' attention to the back-up
materials provided in their packets. She mentioned that
statements in past voters' pamphlets regarding this proposed
amendment to the constitution were poorly written and
difficult for the voters to understand. She stated that she
understood that the attorney general was opposed to HJR 11,
but Lt. Governor Coghill, one of the framers of the Alaska
constitution, supported the measure.
MS. NUSBAUM said that a small fiscal note was attached to
HJR 11 - $2.2 thousand dollars to place the measure on the
ballot. She offered to answer any questions the members
might have.
Number 298
REP. KOTT asked if the House held a floor vote on the
measure last year.
Number 302
MS. NUSBAUM said that the measure did not receive a floor
vote. She noted that it was killed within a minute and a
half of adjournment, for political reasons.
Number 309
REP. DAVIDSON asked Ms. Nusbaum if HJR 11 would put a great
deal of administrative work before the legislature.
Number 316
MS. NUSBAUM said she thought that the opposite would be
true: the volume of regulations filed by the state agencies
would be reduced.
Number 319
REP. DAVIDSON asked Ms. Nusbaum why she believed this to be
the case.
Number 320
MS. NUSBAUM replied that this measure would make agencies
think twice before promulgating regulations.
Number 333
REP. DAVIDSON asked Ms. Nusbaum if she felt that HJR 11
would alter our government's system of checks and balances.
Number 338
MS. NUSBAUM said that it depended on whose checks and
balances Rep. Davidson was concerned with protecting: the
legislature's or those of the executive branch. She said
that when the administrative regulation system was first put
into place, it was called "policies and procedures." A bill
became law and the agencies came up with a system for
implementing that law. Now the implementation was more law
than policies and procedures, she said. Ms. Nusbaum added
that agency personnel did not have the last word on the
regulations, but the Department of Law did.
Number 356
REP. DAVIDSON asked if HJR 11 would place the legislature in
an enforcement role as well as a policy making role.
Number 366
MS. NUSBAUM responded that when regulations were more
stringent than their governing statutes, the legislature
should have the right to repeal them.
Number 372
REP. NORDLUND requested that Ms. Nusbaum give the committee
some examples of regulations that did not carry out
legislative intent or that went beyond the authority of
their governing statutes.
Number 378
MS. NUSBAUM mentioned regulations pertaining to corporal
punishment in schools. She commented that it should not
require a hue and cry from the public and the legislature to
get agencies to back off from certain regulations. She said
that Lt. Governor Coghill could cite examples from the Water
Quality Act and the Mining Act as well.
MS. NUSBAUM asked Rep. Davidson if he had ever gone back and
looked at regulations which pertained to his bills that had
been enacted into law.
Number 393
REP. DAVIDSON said that he had done so.
MS. NUSBAUM asked Rep. Davidson if he felt good about those
regulations.
REP. DAVIDSON noted that he felt that the agencies had done
an incomplete job of dealing with the most recent water bill
that he had passed, because they had only implemented
regulations for those provisions that they supported.
Number 400
CHAIRMAN PORTER asked Ms. Nusbaum if she were aware of how
many other states had provisions similar to HJR 11 in place.
Number 401
MS. NUSBAUM said that she did not know the answer to
Chairman Porter's question.
Number 411
MS. HORETSKI called the members' attention to a letter in
their packets from the Department of Law opposing HJR 11.
Number 418
CHAIRMAN PORTER called a brief at-ease while the committee
members reviewed the letter.
Number 451
REP. GREEN moved that HJR 11 be passed out of committee with
individual recommendations.
Number 455
REP. DAVIDSON and REP. NORDLUND objected.
Number 457
REP. NORDLUND indicated that he, as a member of the
legislature, would probably support HJR 11. He stated that
he believed there were incidences of regulations written
beyond the intent of their governing statutes. He noted his
fear that HJR 11 could make the legislature less vigilant in
its drafting of statutes, knowing that it was possible to
tinker with the law later by overturning regulations.
Number 477
REP. DAVIDSON commented that when the legislature did not
get its way, it simply went back and changed the statutes.
He said that he liked the system the way it was, as it
forced the legislature to write tight statutes. He stated
that the voters of Alaska had shown repeatedly over the last
13 years that legislative repeal of regulations was not a
good idea. The legislature did its part, he added, and
other sections of government did their parts. The
legislature might not like what the other arms of government
did, he said, but the legislature's response ought to be to
do its part more carefully.
REP. DAVIDSON stated that the resolution should be brought
back before the committee for more discussion and testimony.
He indicated that he would like to hear from constitutional
law experts on the issue. He said HJR 11 could be a
momentous change to our government and thus merited a great
deal more discussion.
Number 512
REP. GREEN commented that he felt that HJR 11 was long
overdue. If the legislature passed a law and a state agency
misinterpreted that law, there should be a mechanism for
overturning the misinterpretation, he said. He noted that a
misinterpretation might signify a flaw in the statute. Rep.
Green said HJR 11 would give the legislature the opportunity
to discuss the intent of the law with the regulation
drafters.
Number 539
REP. KOTT stated that he agreed with Rep. Green. He noted
that given the opportunity, many agency officials might
exceed the intent of the legislature to address their own
personal agendas. He said that HJR 11 would place a check
on those officials. Obviously, he added, the legislature
was not able to restrict regulation writers too much. But,
he said, he felt HJR 11 would prevent agency officials from
stepping out of bounds.
Number 555
REP. DAVIDSON commented that the legislature had the
responsibility to make laws that people could understand and
that were tight enough to prevent bureaucrats from going
against the lawmakers' wishes. He added that to take power
from other government arms and give it to the legislature
was a bad idea. He said it was easy to put the hammer down
on bureaucrats who found it impossible to do anything right,
because different groups wanted things done in completely
opposite ways. He reiterated that the current system in
place was a good one.
Number 585
REP. GREEN replied that he felt it was not the legislature's
intent to pass power to the regulation drafters. The
regulations should mirror the intent of their governing
statutes, he noted. The check provided by HJR 11 was
needed, he asserted.
Number 600
REP. DAVIDSON commented that the legislature's power came
from the people who sat in the witness chair and called the
legislators on the telephone to explain problems that
existed in the state.
Number 606
CHAIRMAN PORTER indicated his intention to support HJR 11.
He said he felt that regulatory authority was quasi-
legislative and was a delegation of the legislature's
authority to the executive branch. He commented that the
legislature should maintain that authority through control
of regulations. He added that he saw HJR 11 as a means by
which to do that.
CHAIRMAN PORTER noted that Rep. Phillips had rejoined the
committee. A roll call vote to pass HJR 11 out of the
Judiciary Committee was taken, with the result of five yeas
and one nay. Chairman Porter announced HJR 11 was passed
out of committee with individual recommendations.
CHAIRMAN PORTER announced that HJR 1, relating to the
amendment of the constitution by initiative, was the next
item of business before the committee.
HJR 1: USE OF INITIATIVE TO AMEND CONSTITUTION
CHAIRMAN PORTER called Mr. Chip Thoma to address the
committee.
Number 631
CHIP THOMA said that he strongly supported HJR 1, which he
said addressed certain inequities in the law and in the
constitution. He noted that he had also testified in
support of SJR 6, a similar measure. He said that HJR 1
allowed citizens access to the constitutional amendment
process, access which they currently do not enjoy.
MR. THOMA commented that were HJR 1 to pass, it was his
intention to place constitutional amendments relating to
recall on the ballot.
MR. THOMA noted that Article 11, Section 8, of the Alaska
constitution currently said that statutes governing recall
were to be made up by the legislature. He cited his
involvement in the recall movement over the previous 18
months. In researching the constitution, he and others
found that the drafters had made the recall process
unattainable.
MR. THOMA mentioned that his intention was to offer
amendments reducing the requirements from the present two
step process to a one step process. Additionally, he said
that he planned to offer amendments reducing the number of
signatures needed from 45% of those who voted in the most
recent election, to 5% of those voters. He noted that Ross
Perot got on the Alaska ballot with the signatures of only
1% of the voters.
MR. THOMA added that he intended to offer amendments
eliminating all legal challenges and judicial review from
the recall process. He said that it was up to the citizens
to determine the veracity of statements being made for a
recall. As an Anchorage judge recently ruled (on a school
board recall issue), it was not up to the attorney general
and Mr. Edgar Paul Boyko to challenge the recall and thus
delay it through court action.
MR. THOMA noted that the first step of the recall process
had been accomplished at a cost of under $10,000. However,
court challenges during the second stage of the recall
process were ensuring that those who wanted to have a recall
vote would pay a high price for it.
MR. THOMA summarized that his intended program was to make
the recall process shorter and less costly. He said that he
had spoken with Rep. Martin, who was sponsoring a similar
measure. Rep. Martin had indicated that all states that
allowed initiatives and referenda required only a simple
majority, not a 2/3 majority. He said it was very easy to
get 1/3 of Alaskans to oppose any measure. He expressed his
opinion that a simple majority requirement should be a part
of HJR 11, as was the case with all other initiative and
referendum laws.
MR. THOMA commented that the recall movement had spent four
months negotiating with the Department of Law over the
wording of the recall. The department had signed off on all
language, he said; however, the department still challenged
the recall. He expressed his opinion that the challenges
were dilatory tactics and that Mr. Boyko and Attorney
General Cole should be chastised for their actions.
MR. THOMA summarized his comments by saying that the recall
process was currently very onerous and that his intention
was to streamline and simplify it. For that purpose, he
said, he supported HJR 11. He stated that he was not a
constitutional scholar, but he did not find anything else
wrong with the constitution. He felt that the recall
process was one glaring exception.
Number 702
REP. GREEN asked if the legislature could pass a law saying
that something could not be challenged by a court.
Number 708
MR. THOMA said that he doubted the legislature would take
such an action, but he said they did have that authority.
Number 715
REP. KOTT asked if the sponsor of HJR 11 could address the
committee.
Number 720
REP. GAIL PHILLIPS, PRIME SPONSOR, explained that HJR 1
proposed amendments to the constitution which would allow
the use of the initiative process to amend the constitution
if approved by 2/3 of the voters. She said that under
current law, voters could propose and enact laws by
initiative and approve or reject acts of the legislature by
referendum.
REP. PHILLIPS noted that the Governor had asked for support
for constitutional amendments through the initiative and
referendum process during his State of the State address.
She explained that only the legislature, by a 2/3 vote of
each body, could recommend that a proposed amendment to the
constitution be put before the voters. She said that she
recommended that the same 2/3 requirement be put into place
for the initiative process to amend the constitution.
REP. PHILLIPS described the initiative process to the
committee members. She noted that currently, 21 states
allowed for the initiative process and 17 of those states
allowed amendment of the constitution via that process. She
then called the committee members' attention to the
background materials in their files. (A copy of Rep.
Phillips' written testimony is on file in the House
Judiciary Committee.)
CHAIRMAN PORTER thanked Rep. Phillips for her testimony and
apologized for not hearing her comments first. He called
Judge Tom Stewart to the witness table to address the
committee.
Number 766
JUDGE TOM STEWART, A RETIRED STATE OF ALASKA SUPERIOR COURT
JUDGE, expressed his firm opposition to HJR 1. He mentioned
that he had been elected to the House in 1954 and had
chaired the Committee on Statehood and Federal Relations
that called the Constitutional Convention. He noted that he
had been involved in constitutional issues since that time.
He said he had consulted experts all over the country on
constitutional questions. He mentioned that many of those
experts had been involved in writing state constitutions.
Number 807
JUDGE STEWART said that he had learned that it was vital to
not take actions on constitutional questions without
undertaking extensive research. He said it was important to
learn the potential consequences of particular language and
policies before they were added to the constitution.
TAPE 93-13, SIDE B
Number 000
JUDGE STEWART said that 21 states had the amendment by
initiative process and that experts had studied what had
happened in those states. He spoke about the process by
which the Alaska constitution had been written and the
intensive study that surrounded that process. The single
issue of how the constitution could be amended was studied
and debated intensely for 60 days, he said, and the
amendment by initiative process was decisively rejected at
that time. He said that the committee should not take quick
action on this issue.
Number 049
JUDGE STEWART pointed to the state of California's
constitution as an example of what could happen with the
amendment by initiative process. He mentioned the many
internal inconsistencies within the California constitution.
He stated that the California supreme court had a horrible
job trying to decipher the meaning of its constitution. He
said that one of the reasons that the California
constitution was one of the worst in the nation was because
of the amendment by initiative process.
JUDGE STEWART noted that every California ballot contained a
long list of amendments to the constitution and voters did
not have the opportunity to consider the significance of
those amendments. He said the amendments were generally the
product of special interest groups with narrow concerns. He
added that the amendments did not take into consideration
the balance of the constitutional language.
JUDGE STEWART spoke of our nation and our state as
republics. He noted that the responsibility of carrying out
governmental functions was placed in our representatives.
He mentioned that the legislature debated changes in law,
but the initiative process was a yes-or-no situation for the
voters. There was no opportunity to amend the language in
that situation, he noted. The lack of deliberation in the
initiative process smacked of irresponsible government, he
added.
JUDGE STEWART commented that at the Constitutional
Convention, language was never accepted without being
amended for clarity first. He said that if he were in the
committee members' shoes, he would be extremely reluctant to
act on HJR 1 without consulting many constitutional experts.
He reiterated that the issue of amendment by initiative was
deeply considered by the Constitutional Convention
delegates, but in the end was rejected.
Number 210
JUDGE STEWART stated that if HJR 1 were to pass, he expected
that one of the first amendments to be offered would be to
elect the attorney general. He said there existed a popular
notion that the attorney general was the attorney for the
people. However, looking at the states where the attorney
general was an elected official, the governor of those
states had no responsible legal advisor. He noted that the
function of the attorney general was to provide legal advice
to the governor. If a governor did not have a loyal
attorney general, the governor's program would be thwarted.
He noted that in states that elected their attorneys
general, that office was a springboard to the governorship.
In those cases, the attorney general often sought to thwart
the governor's programs and make her or him look bad.
Number 247
JUDGE STEWART also predicted that the amendment by
initiative process would cause the legislature to lose
control of the budget. He said that constitutional
amendments restricting the legislature's authority to deal
with budget issues would be passed by initiative. He cited
the need for Alaska to impose new taxes due to declining oil
revenues. He said that he feared that the amendment by
initiative process could tie the legislature's hands with
regard to taxation issues. He called Rep. Martin's HJR 9
"nonsense" because people were not in a position to
determine the financial problems of the state and to weigh
whether or not a tax should be imposed.
Number 285
JUDGE STEWART cited the disastrous effects of California's
Proposition 13, which he said tied the hands of the governor
and the legislature in making responsible budget decisions.
At a minimum, he said, the legislature should not act on
this measure during the first year of its two-year session.
He stated that the measure should be studied over the
interim by a special committee that would consult with
constitutional experts. He added that the use of a 2/3 or a
3/4 vote was not the answer to many of the problems inherent
in the amendment by initiative process.
Number 312
JUDGE STEWART cited the constitutional budget reserve fund
amendment as an example of the problems created when the
language of an amendment was not treated carefully. He
called the language in the amendment nonsensical. He warned
that the amendment by initiative process would result in
many more similar instances.
JUDGE STEWART said he was not trying to say that the
constitution should not be amended. He stated that the
constitution failed in some respects, including the
apportionment process. The language regarding apportionment
was obsolete, he noted. The whole apportionment process
ought to be revisited in consultation with experts in the
field. Judge Stewart added that there were other areas of
the constitution which he felt needed to be amended.
Number 356
JUDGE STEWART acknowledged that perhaps the provisions that
we had for amending the constitution were too restrictive.
However, he noted, there were alternatives to HJR 1,
including the creation of a Constitutional Revision
Commission charged with reviewing and researching proposed
constitutional amendments. The Commission could then report
to the legislature on its findings. He named a number of
experts who could consult with the legislature on the
question of constitutional amendments.
JUDGE STEWART urged the committee to consult with experts
before altering the pattern of amending the constitution,
which was written the way that it was under the advisement
of experts in the field of constitutional law. He expressed
his deep personal concern with tampering with the
fundamental structure of the government without adequate
study of potential consequences.
JUDGE STEWART said the state of Utah had a standing
Constitutional Revision Commission, and he urged the Alaska
legislature to make contact with that body before taking the
far-reaching step of endorsing HJR 1.
Number 456
CHAIRMAN PORTER thanked Judge Stewart for his remarks.
Number 459
REP. PHILLIPS asked Judge Stewart if the legislature had, in
the past when amending the constitution, invoked a committee
on style and grammar to review the language.
Number 466
JUDGE STEWART said that to his knowledge that had not
occurred. In the old days, however, he noted that there
were more lawyers in the legislature. Those people had been
trained in the use of clear language, he added. However,
some lawyers obfuscated. He said that his own personal
style used short, clear sentences. But, he noted, that was
the most difficult language to write. He cited the
constitutional budget reserve fund language as an example of
very complicated, unclear language. He said amendments to
the constitution reflected the failure of the legislature to
review language for style and grammar.
JUDGE STEWART predicted that HJR 1 would have disastrous
effects. He reiterated that he was not opposed to
amendments, but he favored very carefully considered
amendments. He urged the committee to look to California
and Washington to see what sort of problems amendment by
initiative could bring about.
Number 538
JUDGE STEWART remarked that he believed the Alaska
constitution to have a serious error in that it required
bond issues to be voted on by the people.
Number 545
JUDGE STEWART said the legislature did not study the impact
of a given bond issue on the overall state budget. They
abdicated that responsibility to the voters, who were not in
the position to say how a given bond issue weighed against
all of the state's other bond issues. He expressed his
opinion that the legislature ought to be responsible for
bonds.
Number 576
JUDGE STEWART again urged the committee to exercise great
caution and to study the issues carefully before taking
action on HJR 1.
Number 580
REP. KOTT thanked Judge Stewart for his enlightening
comments. He asked Judge Stewart if he were familiar with
the Louisiana constitution, which had been rewritten during
the 1970s. He asked Judge Stewart if all states that had
amendment by initiative were inundated with constitutional
amendments on the ballot.
REP. KOTT also questioned Judge Stewart on specific
provisions of the California constitution.
Number 608
JUDGE STEWART indicated that he could not answer Rep. Kott's
questions and noted that his lack of expertise was precisely
the reason why he was urging the committee to consult with
experts.
Number 610
REP. PHILLIPS also thanked Judge Stewart for his lesson in
political science. She complimented Judge Stewart's
suggestion that a Constitutional Revision Commission be
created.
Number 621
CHAIRMAN PORTER thanked Judge Stewart for addressing the
committee. He related an anecdote from his days as a
regulation writer, when a co-worker told him that he should
"eschew obfuscation." He noted that Judge Stewart's example
of the budget reserve fund constitutional amendment was very
appropriate, as the committee was considering a bill, the
purpose of which was to clear up ambiguity resulting from
that amendment.
REP. DAVIDSON expressed his appreciation for Judge Stewart's
work on the Alaska constitution and for raising alarm about
the seriousness of HJR 1. He said he hoped that the issue
would be seriously researched before the legislature acted
upon it.
Number 661
CHAIRMAN PORTER appointed a subcommittee of Rep. Phillips,
Rep. Green, and Rep. Nordlund to research HJR 1 and the
possible formation of a Constitutional Revision Commission.
He asked the subcommittee to report back to the committee in
three weeks.
Number 674
REP. DAVIDSON asked that the full committee be given the
opportunity to hear from constitutional experts and from
those knowledgeable about the experience that California had
had with the amendment by initiative process.
CHAIRMAN PORTER commented that he would ask that the
subcommittee publicize meetings where testimony of that
nature would be taken so that the rest of the committee
could attend those meetings.
Number 688
REP. KOTT reiterated his appreciation for Judge Stewart's
remarks. He asked if any other constitutional drafters were
still alive. He also asked if Judge Stewart would be
willing to chair a Constitutional Revision Commission, if
one were formed.
Number 693
JUDGE STEWART said that there were delegates to and advisors
for the Constitutional Convention who were still alive.
Number 734
REP. PHILLIPS commented that two years before there had been
a meeting of all of the remaining drafters of the
constitution.
Number 741
REP. KOTT again asked Judge Stewart if he would chair a
Constitutional Revision Commission.
Number 744
JUDGE STEWART said that he would be willing to chair the
Commission, but due to his age, the committee ought to
consider others for that role.
Number 748
REP. KOTT distributed some additional materials relating to
HJR 1 to the other members.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 2:45 p.m.
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