01/21/1998 01:06 PM House JUD
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
January 21, 1998
1:06 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR SENATE JOINT RESOLUTION NO. 3(JUD)
Proposing an amendment to the Constitution of the State of Alaska
limiting the rights and protections of prisoners to those required
under the Constitution of the United States.
- MOVED HCS CSSJR 3(JUD) OUT OF COMMITTEE
HOUSE JOINT RESOLUTION NO. 36
Proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature, and repealing as
obsolete language in the article setting out the apportionment
schedule used to elect the members of the first state legislature.
- MOVED CSHJR 36(JUD) OUT OF COMMITTEE
* HOUSE BILL NO. 272
"An Act to permit a court to order a defendant who receives a
sentence of imprisonment for a misdemeanor to serve the sentence by
electronic monitoring; and relating to the crime of unlawful
evasion."
- SCHEDULED BUT NOT HEARD
(* First public hearing)
PREVIOUS ACTION
BILL: SJR 3
SHORT TITLE: PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
SPONSOR(S): SENATOR(S) DONLEY, Halford, Pearce, Phillips, Sharp,
Leman, Green, Ward, Miller, Kelly; REPRESENTATIVE(S) James,
Porter, Martin, Barnes, Sanders, Kohring, Cowdery, Dyson, Masek,
Austerman, Phillips
Jrn-Date Jrn-Page Action
01/13/97 10 (S) PREFILE RELEASED 1/3/97
01/13/97 10 (S) READ THE FIRST TIME - REFERRAL(S)
01/13/97 10 (S) JUD, FIN
02/05/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/05/97 (S) MINUTE(JUD)
02/12/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/19/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/19/97 (S) MINUTE(JUD)
02/26/97 (S) JUD AT 1:30 PM BELTZ ROOM 211
02/26/97 (S) MINUTE(JUD)
02/27/97 535 (S) JUD RPT CS 3DP 1NR NEW TITLE
02/27/97 535 (S) DP: TAYLOR, MILLER, PARNELL; NR:
ELLIS
02/27/97 535 (S) ZERO FISCAL NOTE TO SJR (ADM)
03/10/97 (S) FIN AT 9:00 AM SENATE FINANCE 532
03/10/97 651 (S) FIN RPT 6DP 1NR (JUD)CS
03/10/97 651 (S) DP: PEARCE, SHARP, PHILLIPS, PARNELL,
03/10/97 651 (S) TORGERSON, DONLEY; NR: ADAMS
03/10/97 651 (S) PREVIOUS ZERO FN (ADM)
03/10/97 651 (S) REFERRED TO RULES
03/10/97 658 (S) COSPONSOR(S): PHILLIPS
03/12/97 (S) RLS AT 10:45 AM FAHRENKAMP RM 203
03/12/97 (S) MINUTE(RLS)
03/19/97 787 (S) COSPONSOR(S): SHARP, LEMAN, GREEN,
03/19/97 787 (S) WARD, MILLER
04/11/97 1102 (S) RULES TO CALENDAR 4/11/97
04/11/97 1104 (S) READ THE SECOND TIME
04/11/97 1104 (S) JUD CS ADOPTED UNAN CONSENT
04/11/97 1104 (S) ADVANCED TO THIRD READING UNAN
CONSENT
04/11/97 1104 (S) READ THE THIRD TIME CSSJR 3(JUD)
04/11/97 1105 (S) PASSED Y15 N4 E1
04/11/97 1105 (S) DUNCAN NOTICE OF RECONSIDERATION
04/14/97 1132 (S) RECON TAKEN UP - IN THIRD READING
04/14/97 1132 (S) HELD ON RECONSIDERATION TO 4/16
CALENDAR
04/16/97 1226 (S) HELD ON RECONSIDERATION TO 4/18
CALENDAR
04/18/97 1293 (S) IN THIRD READING ON RECONSIDERATION
04/18/97 1293 (S) COSPONSOR: KELLY
04/18/97 1294 (S) PASSED ON RECONSIDERATION Y14 N3 E3
04/18/97 1305 (S) TRANSMITTED TO (H)
04/21/97 1206 (H) READ THE FIRST TIME - REFERRAL(S)
04/21/97 1206 (H) JUDICIARY, FINANCE
05/08/97 (H) JUD AT 1:00 PM CAPITOL 120
05/08/97 (H) MINUTE(JUD)
10/16/97 (H) JUD AT 9:00 AM ANCHORAGE LIO
10/16/97 (H) MINUTE(JUD)
01/12/98 2028 (H) CROSS SPONSOR(S): JAMES, PORTER,
MARTIN
01/12/98 2028 (H) BARNES, SANDERS, KOHRING, COWDERY,
DYSON
01/12/98 2028 (H) MASEK, AUSTERMAN, PHILLIPS
01/21/98 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HJR 36
SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING
SPONSOR(S): REPRESENTATIVES(S) GREEN, Martin, Mulder
5
Jrn-Date Jrn-Page Action
04/23/97 1293 (H) READ THE FIRST TIME - REFERRAL(S)
04/23/97 1293 (H) JUDICIARY, FINANCE
05/05/97 (H) JUD AT 1:30 PM CAPITOL 120
05/05/97 (H) MINUTE(JUD)
01/21/98 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
SENATOR DAVE DONLEY
Alaska State Legislature
Capitol Building, Room 508
Juneau, Alaska 99801
Telephone: (907) 465-3892
POSITION STATEMENT: Sponsor of SJR 3.
DEAN GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Testified on SJR 3.
JEFFREY LOGAN, Legislative Assistant
to Representative Joe Green
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
Telephone: (907) 465-4931
POSITION STATEMENT: Presented HJR 36 on behalf of sponsor.
JIM SOURANT, Legislative Assistant
to Representative Brian Porter
Alaska State Legislature
Capitol Building, Room 214
Juneau, Alaska 99801
Telephone: (907) 465-4930
POSITION STATEMENT: Testified regarding HJR 36.
ACTION NARRATIVE
TAPE 98-1, SIDE A
Number 0001
CHAIRMAN JOE GREEN called the House Judiciary Standing Committee
meeting to order at 1:06 p.m. Members present at the call to order
were Representatives Green, Porter, Rokeberg and James.
Representatives Bunde and Berkowitz arrived at 1:07 p.m., and
Representative Croft arrived at 1:09 p.m.
CSSJR 3(JUD) - PRISONER RIGHTS LIMITED TO FEDERAL RIGHTS
Number 0045
CHAIRMAN GREEN announced the first item of business would be CSSJR
3(JUD), proposing an amendment to the Constitution of the State of
Alaska limiting the rights and protections of prisoners to those
required under the Constitution of the United States.
SENATOR DAVE DONLEY, sponsor of SJR 3, thanked the committee for
hearing the resolution during the interim. He referred to the
proposed committee substitute, version 0-LS0268\H, Cook/Luckhaupt,
10/14/97. Based on work done with the Department of Law over the
interim, it adds on line 7 the words, "Notwithstanding Section 12".
Section 12 of the existing state constitution is where the
principles of criminal administration are set out, including the
principle of reformation. Senator Donley said by this, they are
"specifically highlighting that we want to limit those rights in
Section 12 to those contained in the U.S. Constitution and also
make it apply to other parts of the state constitution." He
indicated that had been suggested by Mr. Guaneli of the Department
of Law, to "make it clear that this limits other areas of the
constitution that had been interpreted by the courts - as they
interpret those specific sections such as due process with other
sections of our constitution - to create some of the problems,
specific cases that we've seen come from the Alaska Supreme Court,
granting rights to prisoners in Alaska that prisoners in other
states or in the federal system don't have."
Number 0240
REPRESENTATIVE JEANNETTE JAMES made a motion to adopt version 0-
LS0268\H, Cook/Luckhaupt, 10/14/97, as a work draft. There being
no objection, it was so ordered.
Number 0310
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came forward
to testify. He acknowledged that he had worked with Senator Donley
and his staff over the interim to craft language that would reflect
the sponsor's intent, to deal not only with prisoners' rights under
the U.S. Constitution but also those provisions under Alaska's
constitution that really differ from the U.S. Constitution; that
language is reflected in the proposed committee substitute.
MR. GUANELI said he believes he had made the point, when dealing
with Senator Donley and his staff, that this issue is not
completely free from doubt in terms of the way the Alaska courts
would interpret this provision. He said he believes what they have
here is a provision that is intended to say that the principle of
reformation under the Alaska constitution - which is unique in
Alaska and doesn't exist in the federal constitution - is to be
interpreted consistent with the federal constitution. Mr. Guaneli
noted that a lot of federal cases say there is no right to
reformation under the federal constitution. He said this provision
may essentially wipe out the right to rehabilitation under the
principle of reformation under the Alaska constitution.
Number 0381
MR. GUANELI said it is uncertain to him exactly how the Alaska
Supreme Court is going to reconcile this provision with Article I,
Section 12, which contains the principle of reformation. In fact,
that was reconfirmed by the voters three years ago as part of
Alaska's constitution.
REPRESENTATIVE BRIAN PORTER commented that it was reconfigured but
reconfirmed.
Number 0457
MR. GUANELI explained that it is a little uncertain whether the
court is going to say that this, in effect, repeals what is in
another provision of the constitution. The issue is whether this
repeal by implication is something they will interpret precisely
that way. While Mr. Guaneli believes the letter of intent helps,
oftentimes the courts have said that when they are dealing with
voter-approved issues, letters of intent - particularly by sponsors
- aren't really what govern; rather, what governs is what the
voters intended. Mr. Guaneli indicated they look at the ballot
propositions and all the information before the voters.
MR. GUANELI emphasized that he isn't completely confident that this
will be interpreted in precisely the way Senator Donley or perhaps
the committee intends. He said he doesn't know that there is any
way to achieve that certainty, "unless you go into Article I,
Section 12" and specifically repeal the principle of reformation
language in the constitution.
Number 0540
CHAIRMAN GREEN asked whether Mr. Guaneli had a feel for what the
court's interpretation might be.
MR. GUANELI said that is a good question. The Alaska Supreme Court
has used the principle of reformation primarily in two different
ways. The first is as guidance to the lower courts in terms of
sentencing. The Chaney case, almost 30 years old, says the lower
courts are supposed to consider reformation and rehabilitation in
imposing sentences; if they don't, the sentence gets reversed, and
it might get lowered. The second way the court has used the
principle of reformation is to say that the Department of
Corrections needs to make some efforts towards rehabilitation and
prisoner reformation; if they don't as to a particular prisoner,
that prisoner can file a lawsuit and force the department to
provide that rehabilitation.
MR. GUANELI asked how that might change under this. He answered
that one way is with respect to the ability of prisoners to sue the
state. The courts might say that maybe this means - as the federal
courts have held - that the principle of reformation is not
something that a prisoner can go to court and sue over, but rather
it is simply a goal expressed in the constitution, something the
Department of Corrections ought to strive for and the legislature
ought to take some guidance for. "That is one possible way of
limiting the principle of reformation," Mr. Guaneli stated.
MR. GUANELI said how it would be interpreted in the sentencing
context is really unclear. Statutes that the legislature has
enacted take into account rehabilitation, and the supreme court
might say they don't really have to decide the issue because there
are statutes that govern this. They may be able to take that kind
of avenue as a middle ground.
Number 0715
REPRESENTATIVE JAMES said she doesn't necessarily see reformation
as a right. She asked whether the words "rights and protections"
are leading the meaning of this.
Number 0764
MR. GUANELI replied that he thinks that is a possible
interpretation, and that is sort of what he was getting at. He
said the supreme court has taken that language, "principle of
reformation," and turned it into not only a right but an
enforceable right, something one can go to court over. Mr. Guaneli
stated, "So, one possible interpretation would be [that] they look
at that language and say, 'Well, maybe, you know, we aren't going
to say that that is a prisoner's right.'"
REPRESENTATIVE JAMES said it is not a right anymore.
MR. GUANELI restated that that is possible.
Number 0798
REPRESENTATIVE ETHAN BERKOWITZ asked what the practical
consequences would be if this were enacted.
MR. GUANELI responded that particularly in terms of what the letter
of intent says, a number of decisions by the Alaska Supreme Court
would be reversed. He confirmed with committee members that they
had a copy of the document titled, "Letter of Intent by Senator
Donley for SJR 3."
Number 0840
MR. GUANELI restated that there would be a reversal of some Alaska
Supreme Court opinions. He referred to McGinnis v. Stevens, a 1975
opinion listed in the letter of intent. Mr. Guaneli explained,
"What it said was that under the Alaska constitution, there are
some greater procedural rights that prisoners have in disciplinary
hearings. For example, under the Alaska constitution, the
disciplinary hearing - this is where someone misbehaves in prison
and they are disciplined, ... and some of their good time can be
taken away; in other words, they have to serve a longer sentence -
that that hearing has to be tape-recorded. That's a right that
exists under the Alaska constitution, under the McGinnis case - it
doesn't exist under the federal constitution - that prisoners have
a right in these hearings to confront and cross-examine witnesses.
That's something that exists, the supreme court says, under the
Alaska constitution and not under the federal constitution. So,
some of those procedural rights would change, that exist right
now."
Number 0901
MR. GUANELI said as far as other opinions that have interpreted the
right to rehabilitation, and enforce the right to rehabilitation,
those would likely change as well. "And it would be my opinion
that prisoners would not be able to sue to force the department ...
to provide programs for them," he added.
MR. GUANELI cautioned that having said that, as a practical matter
those cases are few and far between, "and we don't lose them."
While they had lost some supreme court cases that say these rights
exist in an academic, theoretical sense, when it comes to actually
suing the department in a particular case and proving they have not
provided some adequate programming to prisoners, that is very rare.
MR. GUANELI stated that in fact, he doesn't recall a case where the
department has been forced to give someone treatment that the
department didn't really want to give and wasn't able to give.
Therefore, in terms of the practical effect it is going to have on
the day-to-day operations of the department, he thinks it may have
little practical effect.
Number 0968
MR. GUANELI continued, "Now, having said that, I know Commissioner
Pugh is worried that if the principle of reformation goes out of
our constitution ... - particularly if, for example, the price of
oil stays low - that there will be some pressure to cut the
department's budget and cut some of the money for programs out of
the department's budget, saying, 'You don't need it, it's not
required by our constitution, the budget's going to be cut.' And
she has a real fear that that could be a result." Mr. Guaneli said
from Commissioner Pugh's standpoint, even if these programs don't
make a great difference in terms of recidivism, they certainly make
a difference in terms of prisoner behavior, keeping prisoners
occupied so they aren't misbehaving in prison, and keeping the
prisons manageable.
Number 1030
REPRESENTATIVE BERKOWITZ expressed his understanding that as long
as the state remains solvent, this constitutional amendment would
have limited, at best, practical consequences.
MR. GUANELI replied that as long as the department is adequately
funded for prison programs, the existing case law that says
prisoners can sue over their programming does not worry him in
terms of being the state's lawyer. "It doesn't bother me; we win
those cases," he commented.
MR. GUANELI stated that as to the practical effect in prison
disciplinary hearings, for the last 25 years the department has
been tape-recording prisoner disciplinary hearings. He said it is
not a big deal for them to do that, and the system has accommodated
that. He said, "They might save a little time going back the other
direction, but the system is working fine with that. So, I think
the answer to ... your question is yes. ... As long as the system
is adequately funded, it would tend to have limited practical
effect, particularly ... in light of the 'no frills' prison bill
that passed. I mean, that went a long way towards, you know,
limiting what the department does with prisoners and stopping, if
you will, the department from going too far in providing prisoner
amenities. And I think that ... that probably had more of a
practical effect than this would. ... This addresses a lot of
legal concerns. I'm not certain what the practical effect is going
to be."
Number 1124
REPRESENTATIVE ERIC CROFT asked whether it is correct that to the
extent the Alaska Supreme Court can interpret this, "we are asking
them to read out a section of Alaska constitutional rights and
simply apply the federal."
MR. GUANELI replied that it doesn't necessarily say, "Read out the
Alaska constitution," but it says, "Only go so far as the U.S.
Constitution would go."
Number 1170
REPRESENTATIVE CROFT said it seems to him that it is the same thing
to say, "Apply our constitution only as far as the feds go," or
simply, "Ignore our constitution, you've still got the federal
constitution, you're going to have to apply those standards." He
asked, "So, isn't the effect of this saying prisoners have no
Alaska constitutional rights anymore, except as specifically
(indisc.)?"
Number 1190
MR. GUANELI replied that he believes that is certainly one possible
interpretation. He noted that he had begun his testimony by
expressing uncertainty as to exactly how the supreme court is going
to address that issue.
Number 1204
REPRESENTATIVE CROFT said he wasn't sure how they would interpret
it, either, or whether they would interpret it at all. He stated,
"But to the extent they give it any teeth, it has to mean - it
seems to me, logically - ignore for the purposes of prisoners the
Alaska constitution, apply federal rules. If you can't extend
anything farther than the federal - and you brought up the point
where they have no right to reformation - we're saying, 'A whole
class of our citizens' - for the first time that I have ever heard
of - 'you people don't have any rights under the Alaska
constitution, whether it's speech ...'"
REPRESENTATIVE PORTER and CHAIRMAN GREEN interjected, with the
former calling this a mischaracterization and the latter suggesting
it is a point of order.
REPRESENTATIVE CROFT questioned whether it is a point of order.
REPRESENTATIVE PORTER and CHAIRMAN GREEN both said it is.
REPRESENTATIVE PORTER stated that he wishes the person saying this
bill would eliminate the rights of prisoners would read the rest
of Section 12 of Article I. He said it is not amending any of
those things.
Number 1257
REPRESENTATIVE CROFT responded that he had not heard how his
comment was out of order, and he suggested it was simply a response
that Representative Porter could have done in good time.
REPRESENTATIVE PORTER said it was a misstatement of fact, which was
out of order.
REPRESENTATIVE CROFT responded, "It was not, and you can bring that
opinion out ... in the ordinary course of this. I think that
that's exactly what this does and was trying to get that from our
legal advisor here. I think that it logically follows that when
you say, 'Don't go any farther than "X," you've eliminated the
other standard.'"
Number 1284
CHAIRMAN GREEN suggested that saying "we are abandoning our state
constitution in favor of the feds" casts an unnecessary aspersion
on this and is much different from "you're only going so far as the
federal requirements."
Number 1299
REPRESENTATIVE CROFT responded, "With all due respect, Mr.
Chairman, I think it's exactly the state, that logically it works
out to be that if you say, 'Go no further than the federal,' you
have eliminated any further protection of the Alaska State
Constitution. I'd like the response of our testifier on that."
CHAIRMAN GREEN said he would allow that.
Number 1319
MR. GUANELI said he thinks Representative Croft's interpretation is
one possible interpretation that could be applied. He stated, "I
think ... my initial testimony was that that would be a repeal by
implication; the supreme court doesn't like to do that and would
try to find some middle ground under which ... they would still be
able to give some meaning to what is in the Alaska constitution,
but taking into consideration the limitations imposed by the
federal. So -- and that's what I was struggling with. I wasn't
exactly sure how that would be done, but I think that they would
certainly try to do that. The supreme court has cases all the time
where it tries to reconcile ... conflicting statutes, conflicting
regulations, conflicting state interests. And ... it tries to
steer a middle ground at times. And how precisely that's going to
be done in a specific case, ... I'm really not able to say."
Number 1380
REPRESENTATIVE JAMES said it seems that the result would be that
the list of so-called rights that the prisoners have under the
state constitution could be applied to them if that decision were
made. However, prisoners wouldn't have a right to go to court and
say they were not getting enough, if it was in excess of what the
federal government does. She said it appears to her that it
doesn't take away the right of the state to utilize any of those
benefits listed in here. She asked whether that is correct.
Number 1408
MR. GUANELI said he believes that is certainly a reasonable
interpretation.
REPRESENTATIVE JAMES suggested there is some guidance in our
constitution as to what the public wants. "It's just that they
don't have the opportunity to go to court if they don't think it's
getting enough," she added.
MR. GUANELI said he thinks that is a reasonable interpretation. He
advised members that right before this hearing, he had checked
through the Alaska Constitutional Convention minutes, which
contains statements by some of its framers that what was intended
was that the principle of reformation should really be a goal that
we strive for. He suggested that some could argue that the supreme
court got a little off-track when they said this goal that the
framers were talking about really is an enforceable right.
Number 1471
REPRESENTATIVE JAMES expressed concern about keeping prisoners
busy. She asked Mr. Guaneli whether that requires a statutory
change or could be done administratively, but not necessarily with
"these maybe-expensive programs or other things ... that would be
falling under reformation."
Number 1521
MR. GUANELI answered that he believes there is sufficient
discretion within the statutes right now to allow the commissioner
of the Department of Corrections to adopt any number of prison
programs, including work programs or study programs. He said he
doesn't see the problem with discretion in the statutes, and to a
large extent, the courts have also said that the commissioner of
the Department of Corrections has pretty broad discretion to
administer the prison system in an orderly and efficient way.
MR. GUANELI referred to "Representative Berkowitz's concern about
'as long as there is adequate funding.'" Mr. Guaneli said no
matter what they do, whether it is a work program, a study program
or a college credit program, it costs money, and he doesn't think
they can administer any of those programs without spending some
state resources; he said that is Commissioner Pugh's concern right
now.
Number 1576
REPRESENTATIVE JAMES said she understands and agrees with that
statement. However, it appears that some choices could be less
expensive than others and still keep the prisoners busy, "so that
if the budget is cut, they're not going to be doing nothing." She
suggested it may cost the state more if there is some fracas
amongst the prisoners. She stated, "When we say they don't have a
right to this, that allows us more choices to fill up their time,
would be my interpretation of that, ... if you would agree with
that."
Number 1605
MR. GUANELI said he thinks that is certainly reasonable. He
suggested it might be helpful at some point to hear from somebody
from the Department of Corrections who is an expert on their types
of programs. He stated, "My own view is that in terms of the
availability of work, for example, within the institution - cooks,
janitorial, maintenance, that sort of thing - that they use the
prison population to the extent they can, to the extent that they
have jobs available. We hear complaints from prisoners a lot that
there are not jobs available for them in the institutions. ... They
can only have so many cooks, I guess, is the thing. And so, to
expand that, I mean, to take people, for example, ... out of a
study program and put them to work, requires that you ... create
jobs for them, have correctional officers to supervise them, et
cetera. ... There is going to be some trade-off. Whether it can be
done more cheaply, that's possible. But I'd defer to somebody in
Corrections."
CHAIRMAN GREEN commented that that is a policy to run the prison
and really not a restriction imposed by the federal government.
MR. GUANELI concurred.
Number 1657
REPRESENTATIVE NORMAN ROKEBERG asked whether one thrust of this
amendment is intended to modify the Cleary settlement. He said
he'd had trouble dealing with this issue for a couple of years. He
asked whether the legislature, as a separate branch of government,
could repeal the Cleary settlement, which was formed by two other
branches of government, the executive and judiciary. He further
asked, "Could not this legislature, if it had the desire to do so,
introduce a bill leading to law which would completely repeal the
Cleary settlement and set it aside, on the grounds of either an
appropriation by the part of -- the judiciary, or, I mean, would
you care to try to answer that?"
Number 1701
MR. GUANELI explained that whenever there is a court judgment
arising out of litigation, the court has a set of rules; one rule
allows one party to get out of that court judgment for a variety of
reasons. One reason would be a change in the underlying law that
gave rise to that judgment. Within the Cleary settlement itself,
there is a provision that says that if there has been any
significant change in the law that justifies changing this order,
that would be grounds for the state to go to the court and say, "We
want relief from this judgment; we want out of this judgment."
MR. GUANELI stated, "So, I think that the legislature could enact
statutes that would give the state grounds to go to the court and
say, 'Okay, the law has changed; the underlying basis on which we
entered into this agreement has changed; therefore, we should be
allowed out of it.' But the decision to let the state out of an
agreement that it entered into a long time ago is left to the
discretion of the court. And I am not in a position ... to
guarantee any particular result from that. ... If the court did
abrogate the judgment and let the state out of it, the other side,
the plaintiff class, would be able to appeal that to the supreme
court, and we'd have to have a judgment from the supreme court.
So, ... I think the answer to your question is, 'Yeah, there are
things that could be done that would give the state grounds to ask
the court to do that.' But to guarantee the result, I'm not in a
position to guarantee anything."
Number 1785
CHAIRMAN GREEN asked whether there would be any analogy to the
state's entering into a contractual agreement with an oil producer,
on a royalty basis established by the Department of Natural
Resources and approved by the Governor, with the legislature coming
back and saying that things have changed and the cash flow is down.
Chairman Green said it seems that to "unilaterally change something
to a nonparty would be a real difficult case."
Number 1810
MR. GUANELI replied, "Mr. Chairman, I think there is an analogy,
and I would submit that it's probably even more difficult in the
situation where you have another branch of government, the judicial
branch, having a dispute being submitted to it, having gone to
judgment on this dispute, and having a set of rules under which ...
it can be changed, to actually change that between two branches of
[government]. I think that the situation you suggested was where
the executive branch ... was negotiating directly with ... a
producer. And changing that might even be easier than changing a
judicial judgment."
Number 1834
REPRESENTATIVE ROKEBERG said the analogy doesn't hold up, because
they are talking about the relationships between two separate
branches of government here, which was what he was driving at.
CHAIRMAN GREEN commented, "So would this be, but ..."
REPRESENTATIVE ROKEBERG responded, "You're talking about outside,
third party. But nevertheless, the point here is that I would hope
that the legislature has at least an ability to deal with the
judicial branch of government, more so than just removing their
appropriation for janitorial services in the court buildings. ...
We have the power of the purse strings, but I'm concerned about how
we can properly deal with that, and that's been one of the issues
with the Cleary settlement (indisc.--coughing), in my opinion, is
that relationship, which I feel is, in essence, an appropriation by
the judiciary, which I think is unconstitutional, you know. And
that's my own personal opinion."
Number 1885
REPRESENTATIVE JAMES said it seems that court decisions have been
overturned because of change in the law. Particularly if it was a
change in the constitution, the real basis for all of our statutory
law, it seems that if there was a case, it would, then, fall under
some of those things in the Cleary settlement which indicate it
could be changed. She said, "I understand - and see if I'm correct
on this, then - we know that we're subject to the law of the court
- that it seems to me like that would be a better reason than any
other reason we have currently."
Number 1926
MR. GUANELI said he thinks in general that is a true statement. In
Cleary, however, although the prisoners had alleged violation of
the constitution, because it ended up in a settlement, the state
never conceded that there were constitutional violations, and those
were never fully adjudicated. The Cleary settlement itself is
based on negotiation, give-and-take over various points under
contention. "But there never was a decision that we were in
violation of the constitution," Mr. Guaneli explained. "So, the
argument on the other side is, 'Well, you never conceded that you
were in violation of the constitution; so, changing the
constitution really doesn't change the ground rules, because, you
know, you never were in violation.' If we had been in violation of
the constitution and then the constitution were changed ..."
[Note: The tape flipped early. Therefore, there is some blank
tape at the end of Side A and the beginning of Side B, but very
little testimony is missing. The numbers listed for Side B begin
at the point the tape flipped.]
TAPE 98-1, SIDE B
Number 0001
MR. GUANELI continued, "... no longer was in violation, then I
think you make a very good point. Then that gives us, I think,
much stronger grounds to go to the court. In this case, just
because of the way it worked out, we never had to concede that. I
mean, we certainly didn't want to concede that we were in violation
of the constitution. (Indisc.--coughing) the court greater powers
... over the state in what it can do."
Number 0019
REPRESENTATIVE CROFT questioned how the courts would try to give
meaning to the state constitution in some sort of "medium" way with
this limitation. He said it seems that it is either allowed by the
federal constitution or not. He asked, "What would be the
appropriate middle ground under this amendment?"
Number 0041
MR. GUANELI replied that the only one he could think of quickly was
to say this would be a statement of goals and principles for the
state to operate its prison system, rather than an enforceable
right. There are, for example, federal decisions that apply the
Eighth Amendment, the cruel and unusual punishment clause, to
people who have serious physical illnesses and physical
disabilities, basically saying the state has to make efforts to
make those people better. Mr. Guaneli suggested that is the same
analogy the Alaska Supreme Court used in an early case, almost 20
years ago, to say the state has an obligation to try to
rehabilitate people.
MR. GUANELI explained, "In other words, ... before the Alaska
Supreme Court relied on the principle of reformation to say,
'You've got a right and you can sue over it,' they first said,
'Well, we're going to look to the federal law; the federal law
talks about, "You've got to treat prisoners with a certain level of
care, and that means that you've got to provide them some means of
rehabilitating them, and particularly when they've got a serious
condition that would affect their rehabilitation."'" Mr. Guaneli
said that therefore, the first inroads that the Alaska Supreme
Court started making on the right to rehabilitation really were
based on federal law dealing with the cruel and unusual punishment
clause. So there is a bit of an intertie between cruel and unusual
punishment and reformation and rehabilitation. "It's not a real
strong one, but there is something there," he added.
MR. GUANELI said he could see the court, then, being able to use
the Eighth Amendment under the federal constitution as a way of
still giving some meaning to reformation and rehabilitation. He
commented, "You'd almost have to read the case that I'm referring
to, to see ... how they use that federal law." He then said, "I
guess what I'm saying is they would try to make some sense out of
what seems to be a repeal by implication. They aren't going to
want to repeal the principle of reformation. They're going to want
to give it some meaning, and they're going to search for ways to do
that."
Number 0152
REPRESENTATIVE CROFT referred to the word "notwithstanding." He
asked, "Does this mean ... we can go our own Alaska path on Section
12, but other rights have to be limited to federal, or that this
has to be limited to the federal, Section 12 as well? Are we
specifying Section 12, to exclude it from the general 'look to the
feds,' or to include it ... as a limitation?"
MR. GUANELI replied that he believes the language is there "to
include it." He said, "In other words, look to the feds to all
rights involving prisoners, including Article I, Section 12."
REPRESENTATIVE CROFT said, "Everything."
MR. GUANELI concurred. "And if the sponsor disagrees with that,
I'll defer to him," he added.
SENATOR DONLEY responded, "It was your suggested language, to make
it clear that included everything."
CHAIRMAN GREEN asked whether there were further questions of Mr.
Guaneli, then noted that there were no other testifiers signed up.
Number 0196
SENATOR DONLEY said that philosophically while this amendment says
some of these special privileges are no longer rights for
individual prisoners, this amendment would not prevent the
legislature, or even the department, through its regulatory
process, from making a decision about something they wish to
continue to do. For example, if the department wanted to continue
to tape-record hearings, this doesn't prevent that; it just keeps
prisoners from suing to say they have a right to a tape-recorded
hearing. No longer could prisoners compel the state to do those
kinds of extra things not required by the federal constitution.
Number 0244
SENATOR DONLEY said one thing that happened this summer was
articulated in the letter of intent but not given as an example in
Mr. Guaneli's testimony. The Department of Law had lost the
Brandon case. Senator Donley indicated the court has now ventured
into the area of which specific facility a prisoner may be put in,
and whether the prisoner has a right to somehow argue under the
principle of reformation that he is entitled to have a say as to
what facility he is in. Senator Donley stated, "And while the
Brandon case didn't go all the way there and say that they can
actually specify where they want to be, ... under the theory that
somehow if they're closer to some particular site, they may have a
better opportunity for reformation, it's clear to me that we've
begun down that slippery slope."
SENATOR DONLEY continued, "And a lot of what this constitutional
amendment is intended to do is not necessarily where we're at, at
this moment in time, but what could happen in the future. And
that's one of the reasons in the letter of intent we specifically
refer to the rights of victims, because as it is now, since the
court has gone beyond - as Mr. Guaneli pointed out - what the
constitutional convention's intention was, and changed it from a
principle to a right, they may be balancing that right against the
rights of victims that were contained in the constitutional
amendment for victims' rights. ... I think we should stop that from
happening and make it clear that this is a principle of
reformation, and that beyond what's required by the U.S.
Constitution they shouldn't be able to assert specific rights as
prisoners that would offset the new rights that we've given to
victims in the constitution."
SENATOR DONLEY said it is looking to the future, as well as dealing
with these relatively minor cases, so far, that have happened,
which he characterized as the tip of the iceberg.
Number 0352
SENATOR DONLEY referred to the middle ground. He said one thing
the court has adopted - interpreting constitutional amendments, as
opposed to existing sections of the constitution - was in the
Ostrosky case in 1983, where they said that areas of the
constitution cannot be challenged as unconstitutional under the
pre-existing clauses in the same document.
SENATOR DONLEY explained, "That was when we specifically authorized
limited entry. We had the general clause in the constitution that
was a equal right to resources. They had a limited entry system,
specifically adopted by a constitutional amendment. What the court
said is, 'Well, these things are conflicting, but the limited entry
authorization is specific,' just as the language in this proposal
is specific. ... There's no rights beyond what the federal
government would give, beyond what the U.S. Constitution would
give. That's very specific. So, as they interpret it, one thing
we can be sure, given this constitutional rule of interpretation,
is they're gonna not give rights beyond what the federal government
gives, based on our state constitution."
SENATOR DONLEY concluded by saying he believes it is appropriate
that there is still the principle of reformation "as we go about
the business generally," but it is no longer a right.
Number 0417
REPRESENTATIVE BERKOWITZ responded that it seemed Senator Donley
was using the Brandon decision as a lynchpin for what he was
attempting to do; Representative Berkowitz disagreed with Senator
Donley's interpretation of that decision. He explained, "As far as
I understand, Brandon is currently being incarcerated in Arizona.
And his appeal, as far as I understand it, solely went to the issue
of whether he had a due process right to challenge his
classification, ... to the extent that the classification affects
reformation. And that was not expressly to do with visitation."
Number 0442
SENATOR DONLEY responded, "Mr. Chairman, I think I qualified my
remarks when I said that, that I didn't think they went all the way
in the Brandon case? But if you read the Brandon case closely, I
think it sets us up for that as the next decision based on the
right of reformation."
Number 0460
REPRESENTATIVE BERKOWITZ pointed out that the dissent written by
"that noted conservative, Justice Rabinowitz," stated that there is
no right to visitation. "And that's going to be the direction
they'll go," Representative Berkowitz added.
SENATOR DONLEY replied, "The fact that Justice Rabinowitz was so
worried about this decision that he wrote a dissent indicated to me
that he was very concerned that that's where the court was going
and wanted to try to direct them away from that. And this was one
of the reasons he wrote that dissent."
REPRESENTATIVE BERKOWITZ commented, "I appreciate your liberal
interpretation."
Number 0488
REPRESENTATIVE ROKEBERG expressed concern about the repealing of
Cleary and Senator Donley's statement in the letter of intent that
this is intended to modify it. He asked whether the legislature
has ever endeavored to repeal the settlement in Cleary
legislatively. He added, "And what do we run into there?"
Number 0530
SENATOR DONLEY specified that the letter of intent says this
intends not to modify Cleary but to authorize the state to request
the court to modify Cleary. That is an important distinction,
"because in Cleary, about three times, it says in it the state
can't do, can't modify, can't modify, can't modify, until you get
to the section Mr. Guaneli mentioned that said, 'Well, if there is
some significant change in the law.'" Senator Donley stated, "I
haven't found a way to inspire a significant change in the law that
would directly impact the Cleary stuff yet, the things in Cleary,
other than through this proposal, which is one of the reasons I
came forward with this proposal. It's not a direct modification of
Cleary, but it gets us to the point where if the state was of the
will to, I think we could make a case to the court that it's
appropriate for us to ask for modification. It's still going to be
up to the court to do it or not, right?"
SENATOR DONLEY continued, "The second part of your question - have
we ever tried this before? - in a way we did. About six years ago,
Representative Barnes ... sponsored a resolution, which passed both
bodies, calling on the administration to seek modification of
Cleary. And the administration chose not to act on that, ... for
whatever reason."
Number 0598
REPRESENTATIVE ROKEBERG responded, "Well, but therefore, to your
recollection, we have not specifically passed a bill ... into law
which has been consented to by the Governor which specifically
directs a repeal of all or a portion of the settlement. Is that
correct?"
SENATOR DONLEY replied, "That's true. Basically, every time we've
talked about those things, we've been told that we can't do it.
And one of the reasons we can't do it is also addressed by this
amendment. And that's because Cleary is not just based on state
law, or just based on U.S. constitutional law. It's based on a
'morphing' of the two; ... you squish them together in a way that
it's unclear what part of Cleary is required by what. And that's
real common by courts. When they don't have to make a specific
ruling saying, 'We're doing this because of the state
constitution,' and they're not forced to say, 'We're doing this
because of the federal constitution.' They'll just generally
(indisc.) this catch-all phrase, 'We're doing this under the
federal and state constitution,' but they don't specify which. And
Cleary has that kind of effect. It's just there and combined. And
if you try to go in and try to break out the elements, it's very
difficult to do individually."
SENATOR DONLEY said one advantage of SJR 3 is that for the first
time, there is a single standard, the U.S. constitutional standard.
He stated, "And you'd be able to revisit Cleary under that single
standard ... - with 200 years of interpretation, judicial
interpretation, on the books, by the way - rather than this
'meshed-up' dual constitutional standard, which is under, you know,
virtually a brand-new constitution, the Alaska constitution, and
its unique provisions, that there's not a whole lot of guidance
back through time of what those mean. So, that's ... another
advantage of SJR 3: You can look at Cleary in a much clearer way,
of what's actually required under [the] constitution, rather than
the current handicap we have of not knowing what parts of Cleary
may be required by state -- interpretation of the state
constitution, what (indisc.) parts may be required under federal."
Number 0712
REPRESENTATIVE ROKEBERG said it was unclear to him. He mentioned
an issue discussed by Representative James and himself before the
House Finance Standing Committee the previous day. He said he
believes this legislature as a branch of government needs to assert
its rights, and he doesn't know whether they have done that. He
expressed concern about having to rely on a constitutional
amendment to try to do that, and he restated concern about "not
having asserted our rights specifically to repeal all or a portion
of that settlement, if we felt, as a legislature, that that was
incorrect."
REPRESENTATIVE ROKEBERG said that when this goes before the public,
there may be a problem. The real trap is that this language won't
necessarily appear on the ballot. Statutorily, the Lieutenant
Governor is charged with drafting the language that appears on the
ballot. If it isn't crystal clear to the public, there may be a
problem getting the requisite number of people approving this
amendment in the election.
Number 0859
REPRESENTATIVE ROKEBERG explained that the Lieutenant Governor can
redraft the ballot proposition, without taking the language right
out of whatever is passed by the legislature. He said, "The
legislature or an individual has a right of a cause of action
against that. This is from a statute that this body was wise
enough to pass in 1980. But, I mean, you've got a problem here,
and this is what brings it to light. You know, what does this
say?"
Number 0885
SENATOR DONLEY said he believes the Senate version is the cleanest
version, and they had worked with the Department of Law because the
department had expressed this concern. The Senate version "says
the rights and protections, the extent of those rights and
protections afforded by this constitution to prisoners convicted of
crimes shall be limited to those rights and protections and
extension of those rights and protections afforded under the United
States Constitution." On the other hand, he said, the proposed
committee substitute "is because other people said, 'Well, maybe
the court would read that to not include Section 12.'" Senator
Donley concluded, "Well, I don't know how. I mean, it's real
straightforward to me. I like the Senate version, but I was trying
to make other people happy."
SENATOR DONLEY indicated the bottom line is that the legislature
can say "black" but the supreme court may say "white," no matter
how clear the legislature seems to make it. How the ballot
description is written will be important. And while the Lieutenant
Governor gets to write something, typically the people who have
worked on it get to write something, too. If that is as clear as
the letter of intent, which Senator Donley would work hard to
ensure, he said it will be really hard for the court to say it is
something different.
Number 0984
REPRESENTATIVE CON BUNDE acknowledged his question may be best
directed towards the Department of Corrections. He then said to
Senator Donley, "There's been some focus on this that if Alaska
prisoners are limited to the Alaska constitution that this might
eliminate an opportunity for reformation. I mean, I share the
concern that it might have been a goal and it was changed to a
right. But certainly in federal prisons they use the principle,
the opportunity, the concept of reformation, do they not, under the
U.S. Constitution? So, if Alaska prisoners were limited to the
rights of the U.S. Constitution, the state could still be involved
in the concept or principle of reformation, and would not be
limited by anything from the U.S. Constitution?"
Number 1056
SENATOR DONLEY replied that first, the state is not limited at all
and can do even more reformation than before, if it wanted to as a
policy decision, "even with this existing amendment." It is just
not compelled to do it, as a right of prisoners. Senator Donley
stated, "I do think Mr. Guaneli took you down the path where there
is some United States Constitution intent with prisoners, in a kind
of a back-door way, to get at some reformation concerns, and those
would still exist, obviously, under the federal constitutional
standard."
SENATOR DONLEY commented that he knows of nothing in our
constitution that says school children have the right to a library
in their schools. For example, his own elementary school in
Spenard had had no library. It is a policy decision, not a right.
While in budget priorities he would favor giving school children a
library over doing reformation for prisoners, that doesn't mean he
is against reformation programs. However, he said, he doesn't see
why prisoners should have these rights to rehabilitation when law-
abiding citizens don't necessarily have those kinds of specific,
articulated rights. He said sometimes in talking of rights and
policy decisions, they get jumbled up. Just because something is
not a right doesn't mean it won't be continued, but it must be
balanced against the big picture.
Number 1178
REPRESENTATIVE BERKOWITZ asked, "If you think these rights should
be extended to the public at large, why didn't you propose a
constitutional amendment (indisc.--simult. speech)?"
CHAIRMAN GREEN indicated he didn't think that was necessarily
germane to this.
Number 1208
SENATOR DONLEY emphasized that this was approved by the Senate, to
address a specific, potentially growing problem. There is a
single-subject rule, and other problems can be dealt with in other
legislation.
Number 1254
REPRESENTATIVE PORTER said he thinks the questions and discussion
have brought out a lot of positive information about why this is a
good bill. He said he agrees with the sponsor that the legislation
is meant to be "a fence, not a punishment," and he agrees with the
analysis that the supreme court, given its head, will run. He said
notwithstanding a constitutional amendment for victims' rights,
this could still go forward without some parameters being put on.
He said he believes it is a "should we or should we not cap
benefits" discussion, that the supreme court has seen fit to
provide unlimited benefits to prisoners "and we're capping them."
He said he thinks that is reasonable.
Number 1339
REPRESENTATIVE PORTER continued, "It has been characterized that
this bill is tantamount to abolishing prisoner rights within the
Constitution of the State of Alaska. Nothing could be further from
the truth. Our constitution, like the federal constitution, even
expanding in individual rights of the federal constitution, has a
plethora of rights that accrue to everyone, including prisoners,
some specifically to prisoners. If that analogy were correct, then
we wouldn't have the state criminal courts. We would have to file
everything in U.S. District Court, because there wouldn't be any
rights for prisoners under the state. Obviously, that's not the
case. Any challenge for the rights of prisoners would proceed
through the state court under the guarantees provided by the state
constitution, with this amendment in place. And yes, we could look
to a cap on some of these things by saying, 'If they want to go to
far with their allegations of rights, what is the cap?' Well, the
cap is what exists at the federal level, and that's the only
function (indisc.). With that in mind, I can't hesitate but to say
that Justice Rabinowitz' minority opinion shows that with age comes
wisdom, and perhaps that will apply universally."
Number 1438
REPRESENTATIVE JAMES said she remembered what happened several
years ago, when "we changed Section 12, when reformation was the
... first on the list." Some of the conversation then was about an
intent to put all these other issues protecting the public -
community condemnation of the offender, the rights of victims of
crimes and restitution from the offender - ahead of reformation.
She said she doesn't see why they are just arguing about
reformation here. She stated that she really supports this issue
and agrees with everything Representative Porter said.
Number 1492
REPRESENTATIVE CROFT disagreed with Representative Porter's
assertion that the court had provided unlimited benefits; he said
that is clearly wrong. It had limits that Representative Porter
disagreed with, but the very case that was discussed shows there
were limits. Representative Croft also disagreed with
Representative Porter's second statement, that this doesn't abolish
state constitutional rights. He said that is what it is intended
to do, and that is the very thing it does, that to the extent
Alaska's rights go further than the federal constitution, they
should be ignored.
Number 1578
REPRESENTATIVE CROFT stated that this is the first time he has seen
that "we're taking a class of citizens - admittedly, a despised
class of citizens - and saying, 'The rights that we all enjoy, you
don't.'" He said, "And I wonder where we go next, on a class of
citizens we don't like, to say, 'Our Alaska panoply - freedom of
speech, privacy, religious freedoms that extend beyond the federal
limits - not for you.'"
REPRESENTATIVE CROFT continued, "I don't know that we can do this
under the federal constitution. I don't know that federally they
can say, 'Hey, do what you want to; abolish your constitutional
rights for everybody, limit 'em for everybody or don't.' But to
say, 'Here's a group of people to whom Alaska's constitution cannot
apply, you must only go as far as the federal,' I think we have
serious problems doing. Even if we can do it legally, I think it
sets a horrible precedent. As badly as we feel about this group of
people, as much as we may dislike this group of people, they've got
either the same constitutional protections as we do, or I'm worried
we're going to start not to have them. It does say, 'Look no
further than the federal government. If it ain't in the federal
constitution, you can't use it.'"
REPRESENTATIVE CROFT agreed with Senator Donley that the wording in
the Senate version is probably cleaner; it clearly says that "the
rights and protections afforded by this constitution shall be
limited." Representative Croft stated, "I don't know where you
find in that a middle ground. I don't know where you find in that
a principle, a purpose, anything enforceable. It says, 'Stop right
there.' And when you stop right there, you might as well say the
statement, 'For prisoners, the Alaska constitution does not apply.'
It cannot apply, according to this amendment. It shall be limited.
Look not ... to the state constitution, look to the federal. And
where we go from here, I don't know. But I will not take a class
of citizens, no matter how badly they've messed up their lives, and
say, 'The Alaska constitution that I enjoy doesn't apply to you.'"
Number 1729
REPRESENTATIVE CROFT said, "Clearly, the Alaska constitutional
provisions don't apply equally to prisoners. That is, you can say,
'You still have a right of free speech. You even still have a
right of free speech under the Alaska constitution. But that
doesn't mean we can't read your mail. ... You're in a prison. You
have a right of privacy. I do, and the prisoners do right now.
But it ain't the same. Bubba's still gonna sleep in your cell.
But it's still there. ... It is conditioned on the circumstances.
It is reasonable under the circumstances, but it's still an Alaska
one, and it's still a right of privacy, speech, religion.'"
REPRESENTATIVE CROFT restated that for the first time he'd heard
of, these constitutional provisions would not apply to a class of
our citizens. "And I can't support that," he concluded.
Number 1817
REPRESENTATIVE BERKOWITZ noted that this is a constitutional
amendment. He read from Article I, Section 1, which begins, "This
constitution is dedicated to the principles that all persons have
a natural right to life, liberty, the pursuit of happiness, and the
enjoyment of the rewards of their own industry; that all persons
are equal and entitled to equal rights, opportunities, and
protection under the law ...." He said this resolution does
exactly what Representative Croft stated: It classifies a group of
people differently under the state constitution.
REPRESENTATIVE BERKOWITZ explained that it troubles him because
they have taken this debate and made it a test of how much they
detest prisoners, rather than how much they respect the
constitution. He stated, "And as soon as we concede the
protections afforded under the Alaska constitution to the federal
government - which is exactly what we're doing here - then we have
entered on a slippery slope. And that makes me very fearful. So,
I'm going to stand with Representative Croft; I'm going to stand
against this. I think it sets an incredibly dangerous precedent,
and I'm worried about the course of future debate."
TAPE 98-2, SIDE A
Number 0001
REPRESENTATIVE ROKEBERG asked, "Have you also considered, in your
deliberations about that, drafting an amendment to repeal Cleary?"
SENATOR DONLEY replied, "Yes, I've considered how to deal with
Cleary for about ten years now; I think Cleary's been around at
least that long. ... And every time I went, I came back to this
problem of the merged constitutional guidelines. And without
separating them, it was -- I didn't find a way we could get at the
Cleary issues one by one, some of the specific requirements in
Cleary, until we could clearly identify what's required where. And
as long as they're required under the federal constitution, there's
nothing you can do about it; you're stuck with it. The only
options you have [are] those things the court might have
interpreted were required under the state nuances of this language.
And to identify those, first of all, you've got to set a single
standard or force the court to do that, and the court's not going
to do that without something like this to base it on."
SENATOR DONLEY pointed out that in 1988, voters adopted the "Alaska
hire" constitutional amendment, which established the state
constitutional standard in residency preference questions as being
what is required by the federal constitution, not the state
constitution. He commented, "So, we have done a similar thing in
our state constitution previously. And I think it got like 88
percent of the vote, or something like that, from the public, to
adopt the federal standard, because our state standard was
preventing us from giving preferences to our own citizens. The
supreme court was striking down attempts we were making to give
reasonable, legitimate preferences in any other state for our own
citizens because of the uniqueness of our state constitution. And
so, the voters went ahead and said, 'For this specific issue, we're
going to adopt the federal standard.' So, this is not completely
unheard-of."
REPRESENTATIVE BERKOWITZ commented, "For all Alaskans."
Number 0230
REPRESENTATIVE ROKEBERG thanked Senator Donley for working on this
issue, which he said has concerned him for a number of years. He
suggested this is a prime example of the judiciary's going beyond
what the legislative branch believes the judicial branch has the
ability to do. He stated his belief that it is appropriate for the
legislature to take these issues up as they come about and to pass
laws - even if they must go so far as to amend the constitution -
to set things right, because that is their responsibility as
policymakers in the state. He asked, "But isn't it true, ...
Senator Donley, that the court has enumerated these rights, and not
the constitution, and not the legislature and the people of the
state of Alaska? And that's what we're trying to correct?"
Number 0319
SENATOR DONLEY replied, "As the attorney general pointed out, the
court has gone this direction, that these are now rights and not a
principle of reformation. So, it's something the court has
developed over time." Senator Donley referred to the question of
whether they can constitutionally discriminate against certain
classes of people. He said he thinks the answer to that is clearly
yes; it is very clear under federal constitutional law that
convicted prisoners simply aren't entitled. For example,
prisoners, unlike ordinary people, are locked up. There are
special rules for them, including restraining them and controlling
their activities.
SENATOR DONLEY pointed out another example in statutory law,
limitations on gambling, for which he said there are no federal
protections, whereas states have great leeway in regulating
gambling activities. He concluded that there are "certain things
and classes and subject matters" under federal law where there is
more deference in how they are dealt with, for logical, good
reasons that are justified in society.
Number 0424
REPRESENTATIVE BUNDE offered his opinion that the public has a
certain expectation that the punishment portion of incarceration
will take precedence over rehabilitation. He recalled his
grandfather's notion that punishment is, in many cases, rather
rehabilitative. "So, I don't think we're piling on," he said. He
commented on the fervor he has heard in arguments for ensuring that
Alaskans have equal protection under the constitution.
Number 0535
REPRESENTATIVE JAMES emphasized that she feels comfortable with the
rights given to her under the federal constitution, although there
are things in the Alaska constitution that she is probably happy to
have, too. She said we do discriminate in the way we treat
different people for different reasons, and the courts will uphold
it as long as it is in the state's best interest; she cited gun
laws as one example. Noting that this limits prisoners' rights to
those under the U.S. Constitution, she said she sees no problem
with that, she feels comfortable with it, and in her opinion, any
argument with that is only meant to be emotional and not
reasonable.
Number 0666
REPRESENTATIVE CROFT offered Amendment 1, 0-LS0268\H.2, Luckhaupt,
1/21/98. (A second written amendment, H.1, was not offered.)
Amendment 1 read:
Page 1, lines 1 - 3:
Delete all material.
Insert "Proposing an amendment to the Constitution of
the State of Alaska providing that a certain class of persons
have no enforceable rights under the Constitution of the State
of Alaska."
Page 1, lines 7 - 12:
Delete all material and insert:
"Section 25. Prisoners. Prisoners convicted of crimes
shall have no enforceable rights under this constitution."
Number 0694
REPRESENTATIVE PORTER objected.
REPRESENTATIVE JAMES questioned whether they could change the title
in a Senate bill.
REPRESENTATIVE CROFT indicated a concurrent resolution could be put
along with it. He explained Amendment 1, saying it seems that
logically this does what the amendment does, but in plainer
language, responding to Representative Rokeberg's concern. He
said, "You don't have any ... Alaska constitutional enforceable
rights; you retain - we couldn't do anything about it - all your
federal constitutional rights. To the extent they have 'em and we
don't, you've got 'em. To the extent we have 'em and they don't,
you don't. And that's what the 'shall be limited to' language
means in the original. I just think it gives people a clearer idea
... of what we're doing here, and possibly give people some pause."
Number 0772
REPRESENTATIVE PORTER said this is precisely the discussion they
had previously. He opposed the amendment, incorporating his
previous comments and offering them "as an indication that this, in
my opinion, is totally incorrect, that all of the rights that would
exist under the state constitution, save those few that exceed the
federal-constitution-provided rights, are still in effect in full
force, and would be judged by our courts."
Number 0810
REPRESENTATIVE BERKOWITZ said this is a clear statement of what
they are doing, putting a roof on the rights of a group of
Alaskans. He stated, "We have said that Alaskans who are
incarcerated, who already have rights taken away -- no one has
disputed that, no one has challenged that. In fact, we've gone to
great pains to point out that it's appropriate. But when their
rights are somehow considered a smaller bundle of rights than other
Alaskans', we've taken a step backwards from the idea of what a
state constitution should do, and that should ... represent all
people in the state. This amendment just clear state that there is
no Alaska constitution applicable to prisoners. I think that's the
intent."
Number 0930
REPRESENTATIVE ROKEBERG said this is a "vexious" amendment.
CHAIRMAN GREEN asked whether there was further discussion, then
requested a roll call vote. Voting for Amendment 1 were
Representatives Berkowitz and Croft. Voting against it were
Representatives Bunde, James, Porter, Rokeberg and Green.
Therefore, Amendment 1 failed by a vote of 5-2.
Number 0989
REPRESENTATIVE PORTER recounted how an instructor for a
constitutional law course had said discrimination is not illegal,
but illegal discrimination is illegal. Representative Porter then
stated, "It's been mentioned that this bill is so obnoxious that it
says that Alaskans would detest a certain class of people. Now,
does the U.S. Constitution and the U.S. court system have a
reputation for detesting prisoners? I don't think so. We're
certainly not diminishing anything that exists there, nor could we
if we wanted to. So, I don't think it would be an appropriate
characterization to say we detest prisoners. But I think it's
appropriate to say, 'Should our constitution, within the
protections of the U.S. Constitution, discriminate against persons
convicted of criminal offenses while they're under the jurisdiction
of the court?' I have no problem saying yes to that, and I have no
problem supporting this bill."
Number 1051
REPRESENTATIVE BERKOWITZ responded, "There is no question that
prisoners are rightfully discriminated against. We take away their
liberty. We withhold them from all the freedoms that law-abiding
citizens enjoy. That's not the question presented by this bill.
The question is: Even within those restrictions, should they be
afforded an Alaskan view of the world, an Alaskan (indisc.) of
rights? And what this bill says is no, they are different. But
we've already acknowledged they're different by virtue of being
prisoners, but we say they're not even going to count as Alaskans.
I don't think that's a step forward."
REPRESENTATIVE BERKOWITZ pointed out that this proposes a change to
the constitution. He said there are less drastic means possible to
effect the same ends that the Senator intends, such as the "no
frills" prison bill that committee members had passed out, which
restricted some of the freedoms that many here found so troubling.
He referred to concerns about Cleary and said he believed
Representative Rokeberg pointed out there are other ways of
addressing the Cleary settlement, rather than proposing a
constitutional amendment. He suggested they don't want to
"Christmas tree" the constitution with every possible concern that
everyone has, if there is a less-drastic means possible.
Number 1149
REPRESENTATIVE JAMES made a motion to move the proposed committee
substitute, version 0-LS0268\H, Cook/Luckhaupt, 10/14/97, out of
committee with the attached fiscal note and individual
recommendations.
REPRESENTATIVE BERKOWITZ objected.
CHAIRMAN GREEN requested a roll call vote. Voting to move the
resolution from committee were Representatives Bunde, James, Porter
Rokeberg and Green. Voting against it were Representatives
Berkowitz and Croft. Therefore, HCS CSSJR 3(JUD) moved from the
House Judiciary Standing Committee by a vote of 5-2.
HJR 36 - REAPPORTIONMENT BOARD & REDISTRICTING
Number 1209
CHAIRMAN GREEN announced the final item of business would be HJR
36, proposing amendments to the Constitution of the State of Alaska
relating to redistricting of the legislature, and repealing as
obsolete language in the article setting out the apportionment
schedule used to elect the members of the first state legislature.
Number 1225
JEFFREY LOGAN, Legislative Assistant to Representative Joe Green,
Alaska State Legislature, came forward to present HJR 36 on behalf
of the sponsor. He reminded members that on May 5, 1997, HJR 36
was introduced to the committee, at which time Jack Chenoweth, who
was then legislative legal counsel, went through the bill section
by section. That meeting had ended with a question from
Representative Bunde as to the 17 states remaining that have
multimember districts, asking whether the movement was to more
multimember districts or more single-member districts.
MR. LOGAN distributed to members a chart titled, "Change in
Multimember Legislative Districts from 1980s to 1990s," which he
had been given by the National Conference of State Legislatures
(NCSL). He explained that the chart shows the 17 states remaining
which have some sort of multimember districts, and it compares the
1980s and the 1990s with regard to the directions these states are
going. He said, "And it seems that the state House numbers are a
bit more illustrative than the Senate numbers, which show that ...
there are fewer multimember districts, I'll say, which I deduct
that there are more states with single-member districts. And
hopefully that will answer Representative Bunde's question, but I'm
sure it will generate others."
Number 1342
REPRESENTATIVE BERKOWITZ asked: Of the 33 other states, did any of
them move back away from single-member districts?
MR. LOGAN answered no, that according to the NCSL, there are still
only 17 states with multimember districts. "Nobody went back," he
added.
Number 1362
REPRESENTATIVE BERKOWITZ said he'd thought two or three of them had
gone from multimember to single-member districts.
Number 1366
REPRESENTATIVE PORTER advised members that another bill would be
coming out soon which deals with this general area and suggests
changing another body of law. In the research that he and the
other joint sponsor did on that bill, they'd gone back and forth on
the term "redistricting" versus "reapportionment." He stated, "As
best we can figure out at this point, the term 'reapportionment' is
appropriate for the reconfiguring of the boundaries of election
districts."
CHAIRMAN GREEN noted that he and his legislative assistant have a
different interpretation of that.
Number 1414
MR. LOGAN explained, "When the bill was drafted, it was the
drafter's opinion at that time that 'reapportionment' is a term
generally reserved to amending or changing the number of
representatives within a fixed boundary, whereas 'redistricting'
... is the process of changing the lines within a fixed boundary,
referring more to ..."
REPRESENTATIVE PORTER interjected, "We will present case law that
doesn't exactly support that position."
Number 1457
REPRESENTATIVE JAMES asked what the procedure is under this
legislation to determine how many Senators and Representatives we
have in the state. She further asked, "What is the first test?"
Number 1475
MR. LOGAN referred to a proposed committee substitute, version 0-
LS0939\E, Glover, 1/20/98, which he said contains a few minor
changes. He stated, "The constitution now ... in Article VI,
Section 4, which is found on page 2 of the bill, Section 4, it
deleted language there. It states the process by which the
dividing will take place. And basically, they go from the
decennial census conducted by the federal government, they take
that number and divide it by 40, and that is the size of the
district. And then they begin adjustment procedures after that,
depending upon what the courts have to say. ... As you can see, we
delete that language. We do not reinsert the number '40' in this
language. And the sponsor has indicated that he may be desiring of
inserting the number '40' relating to House districts, and possibly
'20' relating to Senate districts in here, to clarify that, since
we've taken that language out and it's not reinserted in the
original bill or the committee substitute."
Number 1564
CHAIRMAN GREEN concurred and said that is on page 2, line 2. He
said he will be trying to establish 40 single-member election
districts and 20 Senate districts, which would be an amendment
offered when Mr. Logan was through with his presentation.
Number 1579
REPRESENTATIVE JAMES indicated she had asked because "40" has been
around a long time. She said she doesn't know what provision
except another constitutional amendment ever gets us to any other
number, although she doesn't know that another number is needed at
this point in time. She stated, "But when you try to divide the
state of Alaska into 40 equal sections, ... you have districts like
36 and 37 that [are] unwieldy for anyone to represent the people in
there. And I'm not in favor of having a district with a smaller
number of people. The 'one man, one vote' is a very important
issue, I think, and so I'm not interested in that. However, ... if
the really smart people get together, we might be able to figure
out something to do with that. And so, having given that at this
time, it seems like we might be able to give some instructions in
the constitution to address that. And I don't know what they would
be, but -- you know, I don't want to open that can, really, but it
is a concern of mine."
Number 1642
CHAIRMAN GREEN noted that District 10 is neatly packaged within the
Municipality of Anchorage, as opposed to District 36, which he
believed to be bigger than two-thirds of our states.
REPRESENTATIVE CON BUNDE commented, "All but two states, Alaska
being one of them."
CHAIRMAN GREEN said the problem they would have, if they tried to
break that geographically, is a very disproportionate
representation from a very few people, which they would want to
avoid at all costs. He concluded that geographically "we're going
to be on the horns of a dilemma for as long as you and I live, at
least."
Number 1689
REPRESENTATIVE BERKOWITZ said there is another alternative, to
simply repeal Article VI, Section 4, and have a mix of multimember
and single-member districts. He added, "You could just randomly
divide the top half of the state into a multimember district area
and the bottom half of the state into single-member districts."
REPRESENTATIVE JAMES suggested that would eliminate the "one man,
one vote."
REPRESENTATIVE BERKOWITZ disagreed.
CHAIRMAN GREEN responded, "Not with multimember districts."
REPRESENTATIVE PORTER said it would be even harder to get around.
CHAIRMAN GREEN suggested then there would be "two, three or four
people having a much greater area."
REPRESENTATIVE JAMES said, "Unless they each only had one-quarter
of a vote."
Number 1717
REPRESENTATIVE CROFT asked what the impetus is for putting in
single-member districts, as opposed to having that option for the
reapportionment board, and why it is preferable.
Number 1732
MR. LOGAN explained, "The notion is that under the current
reapportionment plan, with single-member districts, we have had an
opportunity to see how they work and to see how well they work.
And some of the things we've noticed are that because the districts
are smaller, first of all, campaigns' costs are limited. People
have more attachment to their representatives. There are benefits
of that type that we thought were important enough to enshrine the
single-member districts in the constitution so that Alaskans have
those benefits in the future."
CHAIRMAN GREEN commented, "And you have a federal trend that way,
as well as other states are trending that way." He stated his
belief that, as Mr. Logan says, it is a much more workable system.
He commented, "Smaller groups, people associate you ... as their
Representative, as opposed to a group, two or three or four."
Number 1777
REPRESENTATIVE CROFT agreed with that from his experience. His
father was elected in a multimember district when Anchorage was
multimember; walking with him door-to-door on his last campaign,
Representative Croft said it was astounding to his father how much
Representative Croft could know that "that's Susie (ph) and that
dog's mean or whatever," whereas his father was used to having to
walk the whole city, even back then.
REPRESENTATIVE CROFT said that while he has a certain preference
for single-member districts, he was trying to determine whether
that should be enshrined. He commented on how rarely they change
the constitution, which is appropriate. He said he'd read that in
certain situations, multimember districts give the flexibility to
ensure an adequate minority representation.
Number 1830
REPRESENTATIVE PORTER stated, "Well, during the research that we
did on the other bill that will be forthcoming - which doesn't
address this area but is part of the research - in reading the
cases, the federal guideline for population variance within an
election district is 2 percent, and over that, if there's some
specific circumstance that would balance off the intent to try to
provide as much deference as possible to 'one man, one vote.' Our
supreme court, on the other hand, in '86 held that our
constitutional wording in the requirement to form contiguous and
compact and - as nearly as practical - relatively integrated
socioeconomic area, Section 6, allowed them to say, 'We, to
accomplish this requirement, would allow a 10 percent variant, and
even more, if to get into this area it seemed to be appropriate."
REPRESENTATIVE PORTER concluded by saying he doesn't think that
within the constitution they have a concern that a strict
application of single-member districts would tend to have an
adverse effect on minorities or socioeconomic groups.
Number 1909
CHAIRMAN GREEN said he had talked with some Representatives from
the Bush, who favor this kind of enshrinement because they are
concerned that if they are drawn into a large area, they would
necessarily - to keep from having such a tremendous amount of
geography involved - "have to start gerrymandering into populated
areas to get the population up enough, that they, in fact, could
lose their identity more readily there than they would be having
their own individual districts out in the Bush." Chairman Green
indicated one Bush legislator had been present but had had to
leave.
Number 1942
REPRESENTATIVE JAMES asked, "Wouldn't it be nice someday if we get
to the point where everyone could represent everyone without having
to worry about a minority person representing minority? If we
could just be colorblind."
REPRESENTATIVE BERKOWITZ commented that the U.S. Supreme Court
doesn't allow the drawing of lines based on ethnicity.
CHAIRMAN GREEN asked whether there were other questions. He noted
that no one from the public had signed up to testify.
Number 1982
REPRESENTATIVE ROKEBERG referred to disagreement within the
committee about definitions of "reapportionment" and
"redistricting." He asked whether they were going to clarify those
as they apply to this bill.
CHAIRMAN GREEN replied that he would hope it would stay this way,
as advised by the drafter, Mr. Chenoweth.
Number 2044
REPRESENTATIVE PORTER made a motion to adopt 0-LS0939\E, Glover,
1/20/98, as a work draft. There being no objection, that version
was before the committee.
REPRESENTATIVE PORTER read from page 2, lines 4 through 9, Section
3 of the proposed committee substitute, with added comments. He
said, "Redistricting - or Reapportionment, depending on this
discussion - of the House and Senate. The governor shall
redistrict the house of representatives and the senate immediately
following the official reporting of each decennial census of the
United States. Redistricting shall be based upon population, ...
within each election and senate district as reported by the
census." Representative Porter said that addresses specifically
the boundaries, which is reapportionment, not redistricting.
Number 2076
CHAIRMAN GREEN replied that the fine line is that it would be
reapportionment if there were a different number, based on this
census, "if we said, 'All right, we're going to have 41 or 44 or 38
representatives.'" Chairman Green explained, "We're not saying
that. We're saying we're going to have the 40, and of those 40,
the boundaries for each one of them will be determined by this
census. And I think that's where ..."
REPRESENTATIVE PORTER stated, "I thought I heard you say that
reapportionment addresses the boundaries and redistricting the
members."
CHAIRMAN GREEN responded, "No. If I said that, I misled you. I'm
sorry."
REPRESENTATIVE PORTER said he thought Chairman Green was correct.
"You'll hear this again, though," he concluded.
Number 2103
REPRESENTATIVE JAMES said that is contrary to what is in the
existing constitution, and they must have meant something when they
put in Section 3, "reapportionment," and in Section 6,
"redistricting."
CHAIRMAN GREEN responded that if they had multimember districts,
the number within that district might change. "We're not doing
that," he explained. "We're saying one Representative per
district. We're changing the boundary. We're not changing, within
that boundary, the number of Representatives; that would be
reapportionment."
Number 2133
REPRESENTATIVE ROKEBERG asked whether they had looked at it beyond
the boundaries of Alaska. He said there are large amounts of case
law on this in the United States. He commented that it shouldn't
be that big a deal, but they should get it right.
CHAIRMAN GREEN asked whether Mr. Chenoweth had looked outside the
state for this.
MR. LOGAN said he would have to ask him, and he wasn't sure that in
Mr. Chenoweth's new capacity working for the Office of the Attorney
General, he could answer that. He suggested he could also ask the
current drafter assigned to this bill to do that.
CHAIRMAN GREEN asked Jim Sourant to address this issue.
Number 2181
JIM SOURANT, Legislative Assistant to Representative Brian Porter,
Alaska State Legislature, came forward to testify, saying he didn't
claim to be an expert in this area but he had read all six or seven
of the Alaska Supreme Court cases dealing with reapportionment.
MR. SOURANT said to answer the question about which is
reapportionment and which is redistricting, in one of those cases -
the name of which he didn't recall, but it was on his desk with
language underlined - by way of dicta, the Alaska Supreme Court has
said that in a way, redistricting and reapportionment are one and
the same, that there really can't be one without the other. He
referred to page 2, Sections 3 and 4, of the proposed committee
substitute for HJR 36, relating to Sections 3 and 4 of the
constitution. He stated, "I would say both of those are the
reapportionment parts, that is, the idea that reapportionment means
you have a population base and you divide that by the number of
districts. In other words, you're looking for a mathematical,
perfect number where every district winds up having an equal number
of people. That's the reapportionment part."
MR. SOURANT explained that next is the drawing of the lines, which
is in Section 5 of the resolution, relating to Section 6 of the
constitution. He stated, "And it tells you basically ... that you
draw these lines, and that's redistricting." He indicated neither
the Alaska Supreme Court nor the U.S. Supreme Court has focused on
the reapportionment part, "the population of the state divided by
40." Rather, they give that lip service as being the ideal way to
start.
MR. SOURANT continued, "But then you chip away at reality, which is
found in ... your Section 5 and the Section 6 of the constitution,
where they look at that language ... about trying to carve up these
districts into compact, contiguous, and then in relatively
socioeconomic areas." He said, again, the decisions pay lip
service to the "compact and contiguous" part, barely touching on
that, and they look at the socioeconomic parts to see whether or
not there is trade. He suggested the best example of that would be
the case involving the new district between South Anchorage and
North Kenai. He asked, "Now, they're not contiguous, are they?
Because they're not touching. The supreme court wasn't troubled by
that. They said as long as ... you had airplanes flying back and
forth, ... and everybody fished and everybody visited with one
another, that was enough socioeconomic contact to justify the
district." Mr. Sourant said he was not being rude to his elders on
the court but was trying to give the idea that they put an enormous
amount into that area.
Number 2312
MR. SOURANT continued, "In fact, it's both the U.S. Supreme Court
and in the Gaffney case, and in the Alaska Supreme Court, that say
... you can have a deviation of up to 10 percent with no questions
asked, provided ... you've got some good, rational basis. And in
Alaska, that means that socioeconomic stuff, which is pretty
malleable. And they've hinted that ... you can go way beyond that
in terms of the deviations. And I think the worse case that we had
in Alaska had a deviation of 29 percent in the House, between
districts, where some were over-represented and some were under-
represented. That was knocked down, thank goodness, because that
would be offensive, I think, just to about everybody. But
somewhere ... between 10 percent and 29 percent, the way our Alaska
Supreme Court is looking at these cases, ... they can allow that
much deviation in true representation. So, I hope that helps, for
a hip shot."
Number 2359
CHAIRMAN GREEN indicated claiming a fishing community is the same
as a bedroom community in socioeconomic terms or otherwise makes
one wonder. He asked whether he was hearing that it is the wish of
the committee that this be called "reapportionment" rather than
"redistricting."
REPRESENTATIVE ROKEBERG said they all just want to get it right.
CHAIRMAN GREEN noted that where it used to say "redistricting" in
Section 6, that had been dropped.
REPRESENTATIVE ROKEBERG said in Section 5, it is a district
boundary.
REPRESENTATIVE PORTER commented that after going full cycle, what
they would see in HJR 44 is they went right back and left it the
way it was.
Number 2435
REPRESENTATIVE BUNDE said it seemed to him initially "that you did
redistrict and reapportionment at the same time, because if you
drew the line, the numbers of the people that got included or
excluded changed." He acknowledged the need for consistency and
suggested maybe asking the drafters to take another look.
REPRESENTATIVE JAMES suggested talking to Tamara Cook, the director
of Legislative Legal and Research Services.
TAPE 98-2, SIDE B
Number 0001
REPRESENTATIVE JAMES referred to the civilian population and
military bases. She asked, "Have you dealt with the
resident/nonresident people in the counting, and is this an
appropriate place to do it?"
CHAIRMAN GREEN answered that this is not the appropriate place to
change that back to "civilian." He asked Mr. Logan to elaborate.
MR. LOGAN said it reflects the Egan case [Egan v. Hammond, 502 P.2d
856], an Alaska Supreme Court decision that said we cannot
discriminate between a civilian and a military population.
Number 0053
REPRESENTATIVE JAMES noted that her own district has a huge
military population. She said she has always tried to figure out
why people don't vote, and she believes she doesn't have as many
people in her district because they are counting military people
who have their residence somewhere else. She indicated she doesn't
know that it is a problem. She stated, "I just about know how many
people vote, and that's about how many people I have. But other
places that have a large military complement in their district,
technically those people get more votes than a person who has the
right number of people who are voting in the district, in their
district. And I don't know what that percentage is, but I think
it's a considerable amount."
CHAIRMAN GREEN suggested they would actually get less votes.
REPRESENTATIVE JAMES disagreed, saying a fewer number of people
with a vote is a bigger vote than a larger number of people with a
vote.
Number 0093
REPRESENTATIVE CROFT said Representative James had brought up a
good point, and his own amendment goes to that point. He indicated
he would be agreeable to having the amendment read either
"reapportionment board" or "redistricting board," whichever is
appropriate.
REPRESENTATIVE CROFT made a motion to adopt Amendment 1, which
read:
Page 2, line 9 following "census.":
Insert "The reapportionment board shall conduct a survey
to determine the percentage of resident and non-resident
military voters and shall reapportion based on the resident
population."
CHAIRMAN GREEN asked whether there was any objection.
REPRESENTATIVE JAMES said she hadn't read it yet.
CHAIRMAN GREEN said it was just addressing her question.
REPRESENTATIVE JAMES answered that she didn't know how she wanted
it settled.
Number 0124
REPRESENTATIVE CROFT explained, "Our constitution said 'civilian
population,' because, I think, when it was written the vast
majority of the military population was resident somewhere else -
or at least a large majority of it. And so, they said, 'We just
want to count the nonmilitary.' The supreme court said you can't
do that; if there are legitimate military residents, you have to
count them. You don't have to count what Representative James was
talking about, nonresident military personnel, which ... in the
cases they keep abbreviating 'NRMP.' ... So, it's NRMPs that we're
talking about, the people that might be counted there but are
really military personnel that are residents somewhere else. And
different apportionments have taken different approaches to that.
It used to be -- actually, until the most recent one, they always
did some kind of survey or asked the military for the information:
'Tell us where your people are registered.' The military did that
for a while and then stopped, said, 'We're not going to tell you
anymore.'"
REPRESENTATIVE CROFT continued, "So, after that - I think in the
'70s, but clearly by the '80s - they started doing surveys to get,
'Well, as far as we can tell, roughly 60 percent are resident and
40 percent are not; so, when we have a base with 10,000 people,
we're going to estimate that's about 6,000 residents and about
4,000 nonresident NRMPs.' And the last census did not do that."
Representative Croft suggested that as a reason why Representative
James' district may have that inflated number. He said that
aspect concerns him, and he still hadn't decided whether mandating
single-member districts is the right thing to do. He stated that
the amendment says, "The redistricting or reapportionment board -
whichever one - shall conduct a survey to determine the percentage
of resident and nonresident military voters and shall reapportion -
or redistrict, I guess - based on the resident population."
Number 0209
REPRESENTATIVE JAMES said, "If this reapportionment board, who
takes and divides the population into equal segments, they're going
to take out the nonresident military voters before they ... say how
many people are going to be in ... each one, then, I guess, in
those areas that have military, they have to again say, 'Well, how
many of those nonresidents are in this area?' Because we'll have
to expand a little bit to be able to get the number of people."
Representative James said these nonresident military people drive
the same roads, attend the same schools, and do all those kinds of
things that residents do. She asked, "And does that mean if
they're not counted in the reapportionment, they don't have a
voice, either? I don't know how I feel about that." She indicated
she also didn't know whether this is a good amendment or not, and
that she believes there are many things to think about on that
issue before they go forward with it.
Number 0265
REPRESENTATIVE PORTER said that again because of research on the
other bill, they'd looked into this. He offered to have Mr.
Sourant elaborate if necessary, then said the best information they
could get was secondhand, "reportedly from someone that worked at
the census." Representative Porter stated, "And they said ... true
enough; they do not try to discriminate between resident and
nonresident military personnel when they do the census. I don't
know if they discriminate between resident and nonresident
civilians when they do the census. There's some accommodation for
..."
CHAIRMAN GREEN agreed, "There is."
REPRESENTATIVE PORTER said the problem with the amendment is that
it begs the question, "What is a resident?" He said in this state,
he'd guess that the military men and women, except perhaps those on
temporary duty (TDY) at that particular moment in a ten-year
period, will be inspired to become residents because of the
Permanent Fund Dividend Program, which provides approximately
$1,000 each. He referred to the court and said there was a lot of
dicta, as always in court cases, but basically they had said,
"You've got to count your military." Representative Porter said he
would rather just generally count the military than try to get into
the question of what a resident is, and by whose criteria.
CHAIRMAN GREEN advised members that Mr. Logan had some answers.
Number 0339
MR. LOGAN said he believed the sponsor would oppose the amendment.
While in a perfect world Representative Croft's language solves a
number of perceived problems, in the real world of reapportionment
it also raises a number of problems. The first is with the term
"survey," which is somewhat undefined and could take a number of
forms. For example, in the last reapportionment, there were three
different surveys, including a "voter ID" survey, a telephone
survey, and a third survey.
MR. LOGAN advised members that the Cowper reapportionment board had
also enlisted the Department of Labor to conduct an $80,000 study
to determine the military resident and nonresident populations.
However, that information was inconclusive and was not used to make
any final decision.
MR. LOGAN indicated there are a number of logistical problems in
determining what the resident versus nonresident population is.
First is access to the base, which the military has left up to the
base commander. Therefore, one commander may allow a survey while
another does not. Mr. Logan said the biggest problem, according to
material he has read, is that there is no way to survey off base,
where a number of military personnel live, such as in Eagle River.
The only way to do it would be a door-to-door survey, and the
integrity of the sample of the survey would be suspect.
MR. LOGAN noted that in the last reapportionment of the City of Los
Angeles, for the city council itself the court required that legal
residents, even if they were from across the border but legally
there, had to be counted, although there was no opportunity for
them to vote until they went through a citizenship process.
Number 0439
REPRESENTATIVE BERKOWITZ suggested most bases would know how many
housing units they had, how many were full, and how many troops
were deployed at the base, and they could do simple addition or
subtraction. He provided examples.
MR. LOGAN responded, "You're absolutely correct. And
Representative Croft noted in the introduction to his amendment
that the military used to do this; we used to be provided this
information. But there's no way for us to require that the
military give us that information. And in fact, in 1990, there
were some states where they backed out the home of record - the
military - to provide that information to some states, and
California and Hawaii were two. I believe there were four. I
think Oregon and Idaho were the other two. But I know that in
California and Hawaii, the military provided that information to
the reapportionment board, and they were able to do that. And
you're right: They know exactly where their people are pretty much
all the time. But in Alaska, they chose not to do that. There we
are."
Number 0494
REPRESENTATIVE JAMES said many Alaska residents are not here and
therefore don't get counted, even though they may be back here
before the next ten years is up. She said she didn't know what
other states do.
Number 0512
MR. LOGAN reported that in one document, the number of nonresident
military people was described as "insignificant." He told members
he would try to attach a number to that for their benefit. "It may
be heavy in Representative James' district, but statewide, from
what I have seen, the number is insignificant," he concluded.
Number 0551
MR. SOURANT advised members that at least two or three of the seven
Alaska Supreme Court cases he'd read talked about this military
issue. The important point is that there is language in one of
those cases that the number of military people is so small that
they use the words "de minimus" in terms of establishing the
population base. So even in the Alaska Supreme Court's mind, this
is not anything that will cause any egregious statistical errors.
MR. SOURANT said he remembered - he believed it was from one of the
state supreme court decisions - that it was so difficult to get the
data about which military people were residents or nonresidents
because the base commanders and administrative officers did not
give out that data. "So, if I understand the intent of the
amendment here, it's that the reapportionment board is going to do
the survey, and it's not that they're trying to get this
information from the census," Mr. Sourant said. "... You can spend
a lot of money conducting a survey, but you won't get access to the
data."
Number 0610
REPRESENTATIVE CROFT wrapped up by saying "survey" was
intentionally undefined; he wanted to leave that to the
reapportionment board to figure out what appropriate poll, survey
or analysis they believe is important. He referred to the example
from Los Angeles and said he almost never follows examples from
there, nor will he. He stated, "I don't know whether it's de
minimus. Representative James, who knows her district better than
any of us, says it's not in hers, and the important thing is, let's
find out. Let's have some survey process to find out and
approximate it."
REPRESENTATIVE CROFT concluded by saying, "We know we are
overcounting by some amount; ... when we count them as one-to-one,
all residents, we assume that. And I think it's better to be a
little right than certainly wrong. I mean, we might as well take
a stab at this to get closer to the truth than simply acknowledge
that we are going to be wrong on this. And it will be closer if we
try than if we don't. So, for those reasons, I would continue to
move Amendment 1, so that we have some estimate of what we know to
be ... a small or a large problem, depending on whether
Representative James' firsthand experience or the reports of the
supreme court are accurate."
Number 0674
CHAIRMAN GREEN said his final rebuttal would be about the concern
over that being in the constitution. If the court looks at this
and says, "We don't think you made a good enough effort; you went
to the base commander and he wouldn't give you the information; you
should have done this, this, this, this, this," it could hold
elections in abeyance for an inordinate amount of time. Chairman
Green questioned whether any possible good from determining the
number of military personnel in Representative James' district is
germane to the potential of causing the election to be held up. "I
understand, and I think it's meritorious, if we could still get the
information, I would certainly support the amendment," he
concluded. "But I'm afraid not being able to get it will end up
causing more problems than you'll ever solve by it."
Number 0714
CHAIRMAN GREEN, noting that he maintained a "no" vote, requested a
roll call. Voting for Amendment 1 were Representatives Berkowitz
and Croft. Voting against it were Representatives Bunde, James,
Porter and Green. Representative Rokeberg was absent, chairing
another meeting. Therefore, Amendment 1 failed by a vote of 4-2.
Number 0769
REPRESENTATIVE PORTER made a motion to amend page 2, line 12, to
insert the word "forty" between the words "establish" and "single-
member."
CHAIRMAN GREEN asked whether there were questions or an objection.
There being no objection, Amendment 2 was adopted.
Number 0801
REPRESENTATIVE CROFT offered a conceptual amendment. He explained,
"On page 2, line 8, it says [CIVILIAN], and that's taken out; I
understand why from the Egan v. Hammond case. But in a previous
draft, I'd seen 'resident,' and that's the way I'd understood the
court interpreting it. We said 'civilian,' but what they really
have to mean is 'resident.' Should that be 'resident population'
there?" He said it is "pretty much a technical-doing-what-the-
supreme-court-told-us-we-had-to-do." He concluded, "But with no
modifier there, I'm not sure what would happen."
Number 0831
MR. LOGAN responded, "Mr. Chairman, I didn't get to this yet. This
is one of the two changes I mentioned in the committee substitute.
The first change is that on page 2, line 7, the word 'resident' is
deleted in the committee substitute. And the second change is that
on page 2, line 19, the words 'and senate districts' are deleted."
REPRESENTATIVE CROFT said he understood deleting the phrase "and
senate districts" for consistency, but he didn't understand the
deletion of the word "resident."
Number 0862
MR. LOGAN responded that it was for basically the same reasons he
had listed in opposition to Representative Croft's earlier
amendment. In trying to define what a resident is under the case
law, at the last reapportionment the court came to no clear
conclusion, and it cost the state thousands of dollars to defend
what that term was. Therefore, it had been recommended that
"resident" be deleted here.
CHAIRMAN GREEN added that it would be dependent upon the decennial
population number.
Number 0889
REPRESENTATIVE CROFT responded that it may be difficult to
determine, but he would like the resident population to be the
basis for "our election drawing." He added, "Setting aside the
whole military issue, it should be, as best we can approach it,
residents."
REPRESENTATIVE PORTER said determining the population is tough
enough. He said it begs the question of what to do about the
residents of a particular election district that were not counted
in the census, including, for example, military people who are
residents but stationed in Germany, senior citizens in hospitals
and students away at a university. Representative Porter asked,
"What do you do about those folks if you say here that
redistricting shall be based on the resident population? You can't
use just the census, then, you have to use that plus some other
things. And I don't think we want to get into that."
Number 0946
REPRESENTATIVE CROFT replied that there are a lot of standards in
reapportionment that are never quite met. However, he wants the
standard to be the resident population; that is what we should
shoot for, even if we will never count them perfectly. He said he
feels that to do otherwise would be a grave error.
Number 1003
CHAIRMAN GREEN replied, "Well, we are shooting for the decennial
population, what is allocated to the state of Alaska by their
count, rather than to say, 'Well, but that didn't include Maude,
who was out of the state at the time.' And there will be those,
both ways. We'll have some in, and we'll have some out. And
unfortunately, we have some projections. They don't count every
nose. And this is a problem with the whole census concept. But at
least it reduces it down to a number that was given to us by the
census takers."
Number 1026
REPRESENTATIVE BERKOWITZ said he hadn't looked at one of those
census books in quite a while. However, if he remembered right, he
said, census taking includes numbers such as tourists and transient
workers. He asked whether they are saying here that they'll count
those people for redistricting purposes, or reapportioning,
whichever term they settled on.
Number 1046
CHAIRMAN GREEN indicated he presumed the objection was maintained.
He asked whether there was further discussion, then asked
Representative Croft for confirmation that he wanted to put
"resident" in front of "population."
REPRESENTATIVE CROFT answered, "Right, where 'civilian' was
deleted."
CHAIRMAN GREEN requested a roll call vote on Amendment 3. Voting
for Amendment 3 were Representatives Berkowitz and Croft. Voting
against it were Representatives Bunde, James, Porter and Green.
Representative Rokeberg was absent. Therefore, Amendment 3 failed
by a vote of 4-2.
REPRESENTATIVE PORTER asked for confirmation that Chairman Green
didn't want to deal with the issue of whether to call it
"redistricting" or "reapportionment."
CHAIRMAN GREEN said no, they were voting on it as-is.
Number 1107
REPRESENTATIVE JAMES made a motion to move the proposed committee
substitute for HJR 36, version 0-LS0939\E, Glover, 1/20/98, as
amended, from committee with individual recommendations and
attached fiscal note(s).
REPRESENTATIVE BERKOWITZ objected.
CHAIRMAN GREEN requested a roll call vote. Voting to move the
resolution from committee were Representatives Bunde, James, Porter
and Green. Voting against it were Representatives Berkowitz and
Croft. Representative Rokeberg was absent. Therefore, CSHJR
36(JUD) moved from the House Judiciary Standing Committee by a vote
of 4-2.
ADJOURNMENT
Number 1120
CHAIRMAN GREEN adjourned the House Judiciary Standing Committee at
3:29 p.m.
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