02/06/1998 01:13 PM House JUD

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* first hearing in first committee of referral
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HOUSE JUDICIARY STANDING COMMITTEE February 6, 1998 1:13 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 (via teleconference) Representative Ethan Berkowitz MEMBERS ABSENT All members present COMMITTEE CALENDAR * HOUSE JOINT RESOLUTION NO. 44 Proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature. - HEARD AND HELD HOUSE JOINT RESOLUTION NO. 25 Proposing amendments to the Constitution of the State of Alaska to guarantee the permanent fund dividend, to provide for inflation-proofing, and t undistributed income from the earnings reserve of the permanent fund; and relating to the permanent fund. - BILL HEARING CANCELLED (* First public hearing) PREVIOUS ACTION BILL: HJR 44 SHORT TITLE: REAPPORTIONMENT BOARD & REDISTRICTING SPONSOR(S): REPRESENTATIVES(S) PORTER, MULDER, Dyson, Green Jrn-Date Jrn-Page Action 01/12/98 2020 (H) PREFILE RELEASED 1/9/98

01/12/98 2020 (H) READ THE FIRST TIME - REFERRAL(S)

01/12/98 2020 (H) JUDICIARY, FINANCE

01/14/98 2048 (H) COSPONSOR(S): DYSON

01/23/98 2121 (H) COSPONSOR(S): GREEN 02/06/98 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER JIM SOURANT, Legislative Assistant to Representative Brian Porter Alaska State Legislature Capitol Building, Room 214 Juneau, Alaska 99801 Telephone: (907) 465-3727 POSITION STATEMENT: Presented HJR 44 on behalf of joint sponsor. KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green Alaska State Legislature Capitol Building, Room 118 Juneau, Alaska 99801 Telephone: (907) 465-4990 POSITION STATEMENT: Presented chart on HJR 44 and answered questions as committee aide. CHRIS CHRISTENSEN, Staff Counsel Office of the Administrative Director Alaska Court System 820 West 4th Avenue Anchorage, Alaska 99501 Telephone: (907) 264-8228 POSITION STATEMENT: Testified on HJR 44. JAMES BALDWIN, Assistant Attorney General Governmental Affairs Section Civil Division (Juneau) Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 Telephone: (907) 465-3600 POSITION STATEMENT: Testified on HJR 44 on behalf of Administration. ACTION NARRATIVE TAPE 98-11, SIDE A Number 0001 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee meeting to order at 1:13 p.m. All members were present at the call to order. Present in person were Representatives Green, Bunde, Porter, Rokeberg, James and Berkowitz; and present via teleconference from Anchorage was Representative Croft. HJR 44 - REAPPORTIONMENT BOARD & REDISTRICTING [Also contains some discussion of HJR 36.] Number 0025 CHAIRMAN GREEN announced the committee would hear HJR 44, proposing amendments to the Constitution of the State of Alaska relating to redistricting of the legislature. [In committee packets was version 0-LS0528\C, 2/3/98, but it was never formally adopted as a work draft.] Number 0044 REPRESENTATIVE BRIAN PORTER, joint sponsor of HJR 44, advised members that the resolution suggests an amendment to the state constitution to change basically two things. The first is the method in which the reapportionment board would be appointed to, in the sponsors' view, make it a bipartisan appointment rather than a partisan appointment. And the second is to do what really exists in the state right now, to establish single-member districts. Representative Porter indicated that is suggested by both the Alaska Supreme Court and the U.S. Supreme Court. REPRESENTATIVE PORTER advised members that Jim Sourant of his office and Tim Sullivan of Representative Mulder's office, the joint sponsor of the bill, have done a lot of research on this. Mr. Sourant, a retired attorney, has reviewed cases and can discuss them if those kinds of questions come up. He then asked Mr. Sourant and Mr. Sullivan to come forward to take the committee through the bill. Number 0200 JIM SOURANT, Legislative Assistant to Representative Brian Porter, Alaska State Legislature, explained that HJR 44 sets up 40 single-member House has not been set out in the constitution before. Each Senate district is composed of two contiguous House districts; this is therefore very simple and straightforward. MR. SOURANT advised members there was language taken out of Section 6, which is the redistricting language. An amendment would be offered by the sponsors to restore the original language, to make clear that when the reapportionment board is in the process of redistricting or reapportioning - "however you want to look at it" - they look at the population as the first threshold area and then look second to make sure the districts are compact, contiguous and socioeconomically integrated. Number 0328 MR. SOURANT noted that in another part of HJR 44, the authority for reapportionment now will be in the hands of a five-member bipartisan board. The majority and minority parties each get two seats. Mr. Sourant suggested this ideologically opposed composition should ensure a diversity of views when drafting the final reapportionment bill. MR. SOURANT explained, "It's not designed to be an adversary system. It's a system of cooperation. The fifth member, who is the chair, is to be as politically neutral and independent as possible, and the fifth member is selected by a majority of the first four members. Simple enough. Now, if the first four members cannot agree on their leader, then, the way the bill is drafted now, you have the speaker of the House, the House minority leader, and the chief justice vote by a majority vote who that fifth member will be. There will be an amendment offered by the sponsors on that issue, as well, to address the concerns of the court system." Number 0418 MR. SOURANT advised members that to enhance the political neutrality of this fifth person, the person may not have held an elected state office or an elected office of a political party in the five-year period preceding appointment. Mr. Sourant noted that "political party" is defined in AS 15.13.400. MR. SOURANT referred to the issues of removal and of filling of vacancies, if necessary. He pointed out that the first four board members may be removed with or without cause, by whatever appointing authority appointed them. The fifth member, however, may only be removed for good cause shown, as determined by a majority of the group consisting of the other four members and the chief justice. Mr. Sourant commented that there are legions of cases talking about what "good cause shown" is. Number 0491 MR. SOURANT referred to a large chart prepared by Kevin Jardell. He told members the board is to be assembled within 15 days after the organizational meeting of the legislature that follows the decennial census; that would be in January of 2001. The board will be required to obtain its own independent attorney. "And it's very, very important that that attorney be independent," Mr. Sourant stated. "Then, ostensibly, this reapportionment board will be organized and ready to go by the end of January 2001, so that when the census data is released - which last time was in April - they'll be ready to act on it immediately." MR. SOURANT explained that when the census data is released, the board will have 30 days to come up with a proposed plan, if they can all agree on one. If they can't agree on one plan, they can have alternative plans. Then, over the next 60 days after the first 30 days, there are public hearings around the state; and that is when the reapportionment board, by the end of that 60-day period, should agree upon its reapportionment plan and proclamation. Number 0633 MR. SOURANT said it is highly likely the reapportionment board will agree on a final plan of reapportionment. However, in the remote event that they cannot agree, HJR 44 says there will be a three-judge panel for judge will be selected by each of the following: the speaker of the House, the minority leader of the House, and the chief justice. Mr. Sourant pointed out, however, that the sponsors would offer an amendment relating to how the three-judge panel is selected, to address concerns of the court system. Number 0725 MR. SOURANT noted that the appeal process was set out on Mr. Jardell's chart. If a qualified voter wants to challenge the adoption of a reapportionment plan done by the reapportionment board, that person has 30 days within which to bring the suit in the superior court; the superior court's scope of review is limited to whether the board acted arbitrarily or capriciously in adopting the plan. Then, if an appeal is taken from the superior court to the supreme court, the standard of review will be limited to whether the superior court abused its discretion in determining if the board acted arbitrarily or capriciously in adopting the plan. "That's if the appeal is taken from an adoption of a plan by the reapportionment board," Mr. Sourant added. MR. SOURANT advised members that under the scenario where the three-judge panel adopts a reapportionment plan, the appeal goes directly to the supreme court, where the scope of the review will be limited to whether the three-judge panel acted arbitrarily or capriciously in adopting the plan. Number 0776 MR. SOURANT pointed out that the powers of the three-judge panel to come up with a reapportionment plan will be limited to adopting one of the proposed plans that the reapportionment board is deadlocked about. In other words, the three-judge panel does not hire its own experts and so forth, duplicating the process of the reapportionment board. The panel's job is simply to choose among alternative proposals. Number 0811 MR. SOURANT told members there is also language in HJR 44 to make clear that all these cases before the superior court or supreme court have priority over all other cases, so that the decisions will be expedited. In the event a plan is invalidated and remanded, it shall be remanded to the reapportionment board, not to a lower court or special master; that is in keeping with the separation of powers expressed by the dissenting opinions in the Hickel case. MR. SOURANT explained that the scenario they are protecting against is one where a reapportionment plan is litigated so long that it won't be decided in time to have a primary election in the year 2002. The way the constitution is drafted now, the existing reapportionment plan, which will be around until the end of December 1999, would become inoperative when the decennial census is released. Therefore, it is possible to have a big hiatus where there is no existing reapportionment plan and yet they haven't litigated the new reapportionment plan. MR. SOURANT stated, "And that actually almost happened in the Hickel case. That was one reason why the supreme court remanded this thing down ... to the superior court. And so, what is in HJR 44 now is a savings provision, so that if you do get a case that's not litigated in time to have the next primary election, then the old reapportionment plan ... will control. And, again, you need to have not just a final judicial decision, but you have to have 60 days at least, so that you know ... where the lines are, so you can come up with voter registration lists, so candidates can figure out if they're going to run in the district, because they don't even know where the lines are till it's all done. And then you've got to print ballots. And so, from the time it's finally remanded and decided, you need at least 60 days. So, that's the language that's in HJR 44, that in effect preserves the old reapportionment plan until the new one is approved and 60 days have gone by to get ready for the next election." MR. SOURANT asked whether Tim Sullivan had anything to add; Mr. Sullivan offered to answer questions. Number 1009 REPRESENTATIVE CON BUNDE asked whether a "qualified voter" is someone currently qualified to vote or is someone capable of being qualified to vote. MR. SOURANT replied, "That is existing language in the constitution. That has not been litigated, so I don't know the answer to that." REPRESENTATIVE BUNDE expressed the hope that it would be the broader interpretation. Number 1065 REPRESENTATIVE JEANNETTE JAMES asked, "And the time line is 90 days to come up with the final plan, 30 days with a proposed plan, 60 days to hold hearings and agree on a final plan; 90 days from when until when?" MR. SOURANT replied, "The clock starts to run on the date that two things happen. The first one is that the reapportionment board is appointed, and they're sitting, ready to go, and secondly, the release of the decennial census date. Now, they normally happen in the order I just gave. But we've also provided language in HJR 44 that if the decennial census data comes out before the board is appointed, the clock doesn't run until ... both things have occurred. So, then the 90 days starts to run ... at that point." Number 1122 REPRESENTATIVE JAMES suggested that if the "census plan" was out by May 1, 2001, for example, and previously the board had been established, there would be 90 days from then to come up with a plan. She said there would be until 60 days before August of the next year. She asked whether that time would be taken up perhaps with appeals or decisions. MR. SOURANT affirmed that, adding that he believed the 1990 decennial census was released in March of 1991. Under the law, as he understands it, the census will be taken in April and the report releasing the data has to be done within 12 months. Mr. Sourant stated, "But with technology improving as it is, as long as it takes to get the data, it's going to take a lot less time to process the data. So, if last time the data was received in March of '91, ... I think if you're trying to sketch out a time line, you should almost assume it won't be any later than March of 2001." Number 1203 REPRESENTATIVE ETHAN BERKOWITZ said it seems that two theories drive any sort of redistricting. They must redistrict because of new census data, and they want to redistrict so that everyone achieves fair representation. MR. SOURANT concurred. Number 1243 REPRESENTATIVE BERKOWITZ asked why the single-member district necessarily is the best way of reaching those goals. MR. SOURANT replied, "The short answer is that it's a more reliable way of ensuring a fair, objective way of ensuring true representation. If you have multimember districts, that concern is not as well-protected as it is with single-member districts; and this is not just a matter of my own opinion." MR. SOURANT continued, "Everyone should be aware and probably should read the U.S. Supreme Court case which was Chapman v. Meier, ... where the Supreme Court did mention a general approval of single-member districts and cited a whole number of law review articles that were critical of multidistrict-type of apportionment. And then it went on to cite with approval several factors why it's good to have single-member districts. ... I think the case they worried about was you may have a multimember district with as many as 30 candidates' names on it, so ... you have the problem of a voter just trying to get educated about whom to vote for; it puts an enormous burden on them." MR. SOURANT continued, "It really does not encourage people to run for public office, because if you have that many people to compete against, it's going to cost a lot more money to be able to campaign in that kind of an environment, and that people themselves within multidistricts may not get ... the true representation that you are alluding to." Mr. Sourant said those factors, and more, were enunciated by the Alaska Supreme Court in, he believes, the Groh case; they had cited reasons why single-member districts are beneficial. Number 1367 REPRESENTATIVE BERKOWITZ mentioned the example of a corporate board of directors where there is weighted voting, so that slates that have 51 percent don't control the agenda at all times. He asked whether there is any possibility along those lines for House or Senate districts. MR. SOURANT replied that he had never heard of an apportionment plan incorporating anything equivalent to cumulative voting. He suggested that may fly in the face of trying to get true representation, where everybody's voice within a district is heard equally. Number 1412 CHAIRMAN GREEN suggested that would be no different than a 51/49 percent split of the popular vote, whatever the size of the district. He asked whether those 49 percent are not represented properly, and he submitted that that is the way a democracy works. Number 1435 REPRESENTATIVE PORTER said to that point, one case spoke to the problem of block voting in multimember districts. He suggested there could be multimember districts and single-member districts in the same body. He stated, "There's nothing that precludes that, and I think at one time this state did. The problem that presents is that these folks getting together is a block vote, and really having a distinct advantage which disadvantages the constituents of the single-member district." He cited as an example the Anchorage School Board; many people in Anchorage feel disenfranchised because there isn't a particular member that lives in their area. He said that is precisely what the U.S. Supreme Court and Alaska Supreme Court have indicated is not desirable. Number 1494 CHAIRMAN GREEN advised members that he had asked Kevin Jardell, committee aide, to go over the process with a flow diagram prior to taking further testimony. Number 1548 KEVIN JARDELL, Legislative Administrative Assistant to Representative Joe Green, Alaska State Legislature, directed members' attention to a large chart he had drawn and walked them through the steps outlined in previous testimony. He asked Mr. Sourant to correct any misstatements. [Some questions and answers regarding specific portions of the chart are not included here.] MR. JARDELL advised members that under HJR 44, if the board could not come up with a single final plan, the board would transmit to a three-judge panel each proposal it had considered. The panel would then select one proposal and issue a proclamation of reapportionment based on that proposal. Just as if the board had submitted the final plan, it would then be subject to legal challenge from any qualified voter of the state. MR. JARDELL said one change under HJR 44 is that at the supreme court level, instead of allowing the courts to have the authority to redraw, they would remand it to the board. He said he assumes the court would point out the problems and instruct the board to make the appropriate changes. Number 1731 MR. JARDELL pointed out that a citizen could attack the constitutionality of a decision. In that case, the standard would not necessarily be "arbitrary and capricious." The superior court would make a decision, and there could be an appeal to the supreme court. If the supreme court finds there are problems, it will remand it to the board to actually draw in the corrections. Number 1782 MR. JARDELL said because the three-judge panel is a new type of court proceeding, the supreme court would promulgate rules, probably procedures that the panel would use. However, he said, it is unclear how much discretion the three-judge panel would have to actually look into the board's decision making, such as calling the board members in front of them, asking them questions and taking testimony about why they chose one plan over another, for example. Number 1815 MR. SOURANT clarified that if a three-judge panel made a decision that was appealed to the supreme court, the supreme court would review the decision to determine whether the three-judge panel was arbitrary or capricious in adopting one of those plans. The supreme court can only look at the record made by the three-judge panel, as it is brought up on appeal; it cannot open up the evidentiary issues again. It is equivalent to judicial review of an administrative decision, and the scope of review is very narrow. Number 1867 CHAIRMAN GREEN said he thinks that is the point of concern; if there were an appeal to the supreme court on a point of law rather than an arbitrary or capricious decision, the supreme court would be powerless to act, the way it is written. MR. SOURANT said that is correct, noting that a constitutional issue is a question of law. MR. JARDELL clarified that for the three-judge panel, the method by which they choose a plan is unclear and would have to be promulgated by the supreme court. Number 1908 REPRESENTATIVE PORTER suggested the confusion might be because he doesn't believe there would be citizen suit in one of the loops. The three-judge panel would be in place because the five-member board didn't come up with a plan on their own. He stated, "The three-judge panel is empowered under this provision only to look at the plans that they came forward with and select them. They would select one, and then that would be the proclamation." MR. JARDELL said his reading was that perhaps after the three-judge panel made its decision, if a qualified voter wished to challenge that decision on a point of law, the original jurisdiction would be in the supreme court; it would not come back to the superior court. REPRESENTATIVE PORTER concurred. MR. JARDELL indicated that if the original jurisdiction is in the supreme court on a point of law, it would be acting as a trial court. "And I don't know if that would cause problems for the supreme court," he added. Number 1973 REPRESENTATIVE PORTER pointed out that in the last census, the reapportionment board didn't reapportion the state. It was not remanded ultimately to that board but to a judge who, with some special masters that he appointed, reapportioned the state. Representative Porter said he doesn't believe that is an appropriate function for the court system. Rather, it should be done by the body recognized in the state constitution as the one that should do that kind of thing. "So, that's what we're getting at with setting these standards of limited jurisdiction for the courts," he explained. He then likened the three-judge panel's choosing among the plans to the "last best offer" in a wage dispute. He said it is constructed this way so that the reapportionment board itself will be motivated to get as close as possible, and if they have a problem, it will be small. Number 2051 CHAIRMAN GREEN again expressed concern over what would happen if a point of law went to the supreme court. Number 2077 MR. SOURANT explained that there are two possible ways that the supreme court can look at appeals from the three-judge panel. One would be if a qualified voter appealed the ruling of the three-judge panel; the done arbitrarily or capriciously, if they erred in the composition of the reapportionment plan. At that point, the scope of review is just limited to the record, and it is not a de novo proceeding. Mr. Sourant added that the supreme court cannot substitute its judgment for that of the panel. MR. SOURANT said on the other hand, if a qualified voter were to bring a lawsuit and raise a constitutional issue, the supreme court would decide that as a matter of law. It is possible that some of reapportionment applications may rise to the level of a constitutional issue. Mr. Sourant commented, "You cannot underestimate the creative powers of determined counsel. And if so, there'll be a blurry area there as to whether or not the supreme court is reviewing this thing from an arbitrary and capricious way that the three-judge panel adopted this plan, or whether the supreme court is going to be looking at it as a constitutional issue." Mr. Sourant added that even if it is a constitutional issue, however, he had doubts that the court can still draw up a reapportionment plan in the manner that Representative Porter had just outlined. Number 2153 CHAIRMAN GREEN said it is that gray area where there is concern. He noted that there would be testimony from the court system. Number 2170 REPRESENTATIVE BUNDE stated his understanding that citizens have a right to challenge the plan, both on the grounds of its being arbitrary or capricious and on a point of constitutional law, on either side of the equation [referring to the chart]. MR. JARDELL clarified that it might not in actuality be equal on both sides. If a citizen challenged the panel's decision on a constitutional point, for example, the first adversarial proceeding would be at the supreme court level. There wouldn't be a trial court taking testimony and having both sides argue the merits of the case, with another level of appeal. He said his concern is that the supreme court is not set up to act as a trial court, and that it may be a better system to have constitutional challenges from the three-judge panel go to a superior court level, with supreme court review. MR. SOURANT responded that he would vigorously oppose that, saying that a constitutional attack, the issue raised by Mr. Jardell, is not a factual issue but an issue of law. "And it can be disposed of by summary judgment motion at the supreme court level, and I see no reason to complicate this process any more than it already is," he concluded. Number 2312 REPRESENTATIVE ERIC CROFT spoke via teleconference from Anchorage, saying it seems a constitutional challenge could be many things, but one of the more prevalent is to say that somehow this plan denies minority representation under the federal voting rights act, or, indirectly, under the equal protection clause of the constitution, for example. In that case, there would be significant factual issues to determine, including where Natives reside or what proportion of the population they constitute. He said one approach that occurs to him is that whether it is a final determination of the three-judge panel or of the five-member panel, it would go to the supreme court anyway. He stated, "And you preserve that superior court independent challenge loop, as it currently stands, and preserve everybody's place in the hierarchy: the superior court making factual findings, the supreme court reviewing." Number 2380 MR. SOURANT asked Representative Croft, "If it is the Federal Voters Rights Act of 1965 you're raising, isn't that a federal statute that would be litigated in federal court?" REPRESENTATIVE CROFT said it may very well be, but he'd understood there is concurrent jurisdiction. MR. SOURANT replied that he knows of no reported case in this state or elsewhere where that Act has been litigated in state court. REPRESENTATIVE CROFT responded that Mr. Sourant has more expertise in that area; however, it seems that wherever it is raised and challenged, there could be factual issues that need to be determined first. Number 2410 REPRESENTATIVE BERKOWITZ added, "Without jumping into whether it's a federal issue or a state issue, equal protection challenges can be raised at a state level. And if there is an equal protection challenge, that would seem, as Representative Croft indicated, to require some factual determination. And if there's a loop that includes the superior court, which is better-equipped - I think, in my experience - to handle factual questions and make factual determinations than the supreme court, that loop ought to be there." CHAIRMAN GREEN suggested asking that question of the court system representative. Number 2432 REPRESENTATIVE PORTER told members that certainly the sponsors are not locked into anything; if the process can be improved, they are open to that. He pointed out the unusual position that this particular process would put a superior judge in, of having to review the decision of three presiding superior court judges. He suggested that testimony may shed more light on that point. TAPE 98-11, SIDE B Number 0006 REPRESENTATIVE JAMES stated her understanding that the three-judge panel wouldn't be used unless the five-member board could not agree, and the panel would then choose from the plans that the five-member board had come up with. CHAIRMAN GREEN concurred. REPRESENTATIVE JAMES said she envisions additional litigation because no matter how many plans they have, a challenge could be against a part of every plan, for example, rather than against one particular plan. She asked when there would be a determination that the plans that were put on the table weren't right in some way. Number 0050 REPRESENTATIVE PORTER stated his understanding that there would only be an opportunity for a citizen to challenge a proclamation, the publication of a plan. That could happen from the plan which the five-member board agrees upon. It could also happen from the plan that the three-judge panel agreed upon and, in effect, sent back to the board for publication. But they wouldn't have to concern themselves with the multiple plans, he said. By the way it is constructed, there would be only one plan to challenge. Number 0085 REPRESENTATIVE JAMES said she sees the merit to that, because one problem they've had historically is picking the plans apart. However, she said, she doesn't know that she is comfortable with having a plan where the plan itself cannot be challenged. She cited redrawing of lines as an example and asked, if there were a challenge about the unfairness of a line, who would actually redraw the lines. REPRESENTATIVE PORTER said the whole point is to have the reapportionment board do that. REPRESENTATIVE JAMES said she understands that goal. Number 0135 CHAIRMAN GREEN expressed concern and cited an example where the three-judge panel gets two plans and selects plan "A." The supreme court then says it was arbitrary and capricious, so the three-judge panel offers up plan "B," which the supreme court agrees to. Chairman Green asked whether that puts the supreme court in a choosing mode for the plans. Number 0153 REPRESENTATIVE NORMAN ROKEBERG stated his understanding that the reapportionment board would generate a record of how they made their decisions, as would the three-judge panel. He referred to page 5, line 31, and said the supreme court shall adopt rules for the proceedings. He stated, "Now, that is maybe where we're getting a little hung up, because we assume that these rules will provide for a record, but maybe the language here doesn't say that, you know. So, that could be one area to look at. And I would assume, then, that the record would then be from the board as well as the three-judge panel that the supreme court would then review, vis- -vis having to enter into an evidentiary-type trial, then; so, you don't have a de novo situation. Is that right? Is that what you're trying to do?" CHAIRMAN GREEN agreed it wouldn't be de novo. Number 0217 MR. SOURANT replied that if they use the last reapportionment as an example, there was a voluminous reapportionment board report, which was the basis of the appeal to the supreme court. He stated, "In the scenario you sketched out, at first you have this written record of what ... the apportionment board has done. ... You have what the three-judge panel did, a record of their proceedings. Both of those would be part of the record that would go to the supreme court to review." REPRESENTATIVE ROKEBERG suggested there would be no need, then, for the evidentiary-type hearing at the supreme court level. Number 0251 MR. JARDELL explained that his concern comes in where the record is transmitted to the supreme court. The challenger makes his challenge in the supreme court; that is the first chance he gets to make his record. Therefore, he is left with the cards that have been dealt all along. Mr. Jardell stated, "He can't, as in a trial court, use the procedures, use the evidence rules, use the tactics and the tools that are available to him to attack the old record and make an actual trial court record which will be reviewed by the supreme court. It's that record that is normally brought up to the supreme court, and, in my view, it works pretty well. Otherwise, I think what you're going to end up with is having the original action filed in the supreme court and possibly having five justices act as a trial court. And I don't think you'd find many attorneys that would think that would be a good idea." Number 0301 REPRESENTATIVE BUNDE suggested that having the three-judge panel choose from among multiple plans would in effect be drawing lines that might favor someone over someone else. REPRESENTATIVE JAMES said the only reason the three-judge panel would choose a plan is because the reapportionment board could not choose a plan they liked; the panel's choice would be between the plans that were chosen. The only thing that can be appealed is whether they chose the right plan, and the only decision that the supreme court could make would be to remand it back to the panel to do the plans over. She asked whether that is how it is intended to work. Number 0414 CHAIRMAN GREEN replied, "Well, on either side [speaking of the chart], you're talking about an appeal to a plan." REPRESENTATIVE JAMES said when a decision is made, if anybody wants to appeal the decision of a plan, certainly they could pick the plans apart from which the one plan was chose. REPRESENTATIVE PORTER responded, "I think that 'the' plans would certainly be a portion of a suit brought by an individual of the selection made by the three-judge panel of the plans. Probably - and not necessarily, but probably - the person favored one of the other plans. But the record of all of those plans will be available from the consideration and adoption proceedings by that three-judge panel. So, in that suit, they could certainly say if they just don't like one over another one; they can say that. If they think that the one that was adopted was constitutionally problematical, then they can allege that, which equal protection would allow the court to look at it from that standpoint. The only thing ... that happens is that the court says if they just like one over another, which they certainly would be able to say, 'No, the three-judge panel was not arbitrary and capricious in making that selection.' You have a constitutional problem? They'll look at that constitutional plan. And if that plan has a constitutional problem, they can send it back." Number 0490 REPRESENTATIVE BERKOWITZ suggested they can send it back, but they can't fix the problem. There is an automatic extra step. REPRESENTATIVE PORTER responded, "They cannot interpose their judgment, except to say that this is unconstitutional. ... If the worst possible situation occurred -- and, of course, that's what we're designing this thing to avoid, and currently it could happen that way, that a maverick, one-sided reapportionment board and the supreme court got into it, if this other procedure were in place, they could go back and forth all day, admittedly. But the only thing that would happen under this bill would be that the old plan would stay in place. But unconstitutional is unconstitutional, and they can make that finding every time and send it back to be fixed, and if they don't fix it, they can send it back ...." REPRESENTATIVE PORTER said they are trying to get the most fair, equal, unbiased, balanced board, so that these kinds of problems are the exception, not the rule. Under the present constitutional scheme, they have been the rule, he said, noting that there has been a challenge of every single reapportionment plan. Number 0558 REPRESENTATIVE ROKEBERG asked Mr. Jardell whether the Alaska Supreme Court and particularly the U.S. Supreme Court sit as tribunals of first referral for certain special cases. For example, if a state sues the federal government, that goes right to the U.S. Supreme Court. MR. JARDELL agreed. He said he is not an expert in that area but could make the firm statement that a trial court is in a much better position to make those determinations and findings. He suggested that the point that there are just a few instances is important. REPRESENTATIVE ROKEBERG suggested since this would be constitutionally mandated, the court would have that authority. CHAIRMAN GREEN said they would revisit that issue with later testifiers. Number 0648 REPRESENTATIVE ROKEBERG referred to page 3, beginning on line 9, subsection (b). He indicated it is about caucusing and the time line for that in relationship to the selection of the presiding officers of each body. He expressed concern about the word "after" on lines 10 and 11; the word "following" on line 12; and the word "convenes" on line 13. He explained, "We're aftering and we're following and we're convening, and the time line concerns me, because I'm not sure what this says." REPRESENTATIVE ROKEBERG noted that many times, there are caucuses prior to the convening of the first session of the two-year legislative session. "Ergo, we'd have elected presiding officers, and ... the House and Senate don't necessarily happen on the same day," he said. "And then, additionally, there's been instances in the past, I believe, in the history of the state, where we've had elections and selections of presiding officers that don't hold up until the first day of convening of session. ... Keeping those types of things in mind in the history of what has occurred, ... it seems to me - and tell me if I'm right - I think what's desired here is to have a situation where we have a firm understanding of who those presiding officers are. And I would suggest that probably the best bet there would be that ... the time line on the 15 days would only run after the convening of the first session. That may be the intent here, but I'm not sure it says that." Number 0744 REPRESENTATIVE PORTER responded that everything Representative Rokeberg had just said was part of the discussion that went into creating this paragraph. One of the first iterations had been that the minority leader would be selected by virtue of a vote by those that didn't vote for the presiding officer. Representative Porter stated, "But that isn't the case, because, as we recognize, generally what happens, unless there is a real knock-down, drag-out, which we h appointed speaker, that person having been appointed by the caucus at their organizational meeting. So, what this is intending to provide is that a recognition - although ... the constitution doesn't recognize it, the Uniform Rules certainly do - that the first thing that happens after an election is that the folks that find themselves in the majority meet, and the first thing they do is select a speaker and a president. The folks that find themselves not in that group meet and generally elect a minority leader." REPRESENTATIVE PORTER continued, "So as to account for the fact that there could be multiple minorities, we've just said those folks that did not organize with the group that appointed; that took care of that concern. But by way of what this is supposed to provide - and I believe it does - is that after the election, the majority organizes and makes a selection, but not until that selection is really confirmed by the convening of the legislature and the actual election on the floor of the president ... and the speaker, the time line starts. If that has happened, undoubtedly there is a minority leader of each body also. And it hasn't been specifically said, I think, but the intent ... here, of course, is that the speaker and the president - and they may not be in the same party - but the speaker and the president appoint, and the minority leaders appoint; so, that's going to balance out, no matter what happens, of two from one political party or philosophy, and two from the minority." Number 0881 REPRESENTATIVE ROKEBERG said he is glad he understands the intent, but he is not sure the sentence structure says that. Number 0888 REPRESENTATIVE BUNDE said at one time, the Senate had a coalition of the whole. Because this specifically talks about a minority and a majority, he asked how that would work. REPRESENTATIVE PORTER agreed that had happened once. He said, "We toyed with trying to figure out language that would describe the minority members of the majority caucus but ... decided not to try to go quite that far." Number 0927 REPRESENTATIVE BUNDE asked whether it would be possible to add language that refers to a case where there is a coalition or no majority and minority, so that the two appointed members would come from that body. REPRESENTATIVE PORTER said they should take a look at that, noting that if there was a banding together in an apparent bipartisan group, the selection perhaps should represent that point of view. Number 0990 REPRESENTATIVE ROKEBERG asked what they would do to resolve a stalemate where the numbers of members were evenly divided. REPRESENTATIVE PORTER replied, "That's why you'd put in here that you couldn't do anything until the permanent presiding officer was appointed." REPRESENTATIVE ROKEBERG noted that there could be multiple minorities, for example, and a stalemate could occur. He said presumably it wouldn't happen in the majority. REPRESENTATIVE PORTER replied that there have been multiple minorities, but there has never been a situation where there hasn't been a single minority leader. Number 1034 REPRESENTATIVE BERKOWITZ reminded members that half of the state is not partisan. If they are trying to design this so that the Democrats (Ds) and Republicans (Rs) get to pick and choose, he suggested that half of the state would be left out in the cold. CHAIRMAN GREEN said they do vote, however. He pointed out that even within a party, there can be a minority. "That hasn't been addressed, and that shall be," he added. Number 1071 REPRESENTATIVE JAMES responded to Representative Berkowitz that while there are parties, and while there are people who are nonpartisan, it is not true that each person doesn't have a philosophical bent. She asked whether there perhaps should be language to ensure a balanced approach to the philosophical bents. CHAIRMAN GREEN replied, "We'll let the sponsor toy with that." Number 1150 REPRESENTATIVE BERKOWITZ said for the 50-plus percent of people who haven't chosen a party, one of the philosophies they are espousing is that they don't want state politics to get mired down in partisanship. It seems that when they design a redistricting or reapportionment board composed of partisan officials, it gets away from the will of the majority. "And perhaps if the committee decides that a reapportionment board is the course that we want to follow, maybe we ought to contemplate composing it of different individuals than those who've been elected," he added. Number 1189 REPRESENTATIVE JAMES suggested that when people don't choose a party, it is not because they don't like partisanship; rather, it is because they don't like cronyism. Number 1228 CHRIS CHRISTENSEN, Staff Counsel, Office of the Administrative Director, Alaska Court System, pointed out that most testimony that day had not been on the original version of HJR 44 but on a draft committee substitute; however, he did not have a copy of the latter and so would therefore make some general remarks. MR. CHRISTENSEN advised members that he had met with the supreme court twice in the last two weeks to discuss the original version of HJR 44. He commented, "Of course, the court takes no position on 90 percent of that resolution; those are political issues which ... the constitution vests in you, and in the voters, in this case. However, it has instructed me to express its concerns on two specific provision of the resolution, which involve the judiciary in the reapportionment process more extensively than it is now." Number 1310 MR. CHRISTENSEN provided background to help explain the court's concerns. The men and women who drafted Alaska's constitution spent a tremendous amount of time trying to decide what kind of a judiciary they would put together. They started from the premise that a justice system should have a moral force in society, and in order to achieve that, it could not rely solely on coercion. MR. CHRISTENSEN explained that people need to buy in to the justice system for it to work. They need to believe they have a system that is fair and impartial, and that generally produces a just result. The drafters of Alaska's constitution looked at the federal system and at the systems in the 48 states; they saw what was wrong and what was right, and they put together a judicial system that is somewhat unique. It has many features which at that time were not done in states, although many have since been copied by other states. Mr. Christensen commented that it is not a perfect system, that nothing created by the hand of man is ever going to be perfect, but that it generally works fairly well. Number 1333 MR. CHRISTENSEN explained that one thing the drafters did in order to achieve public confidence in the judiciary was to create a system which, as much as humanly possible, was removed from partisan politics. He stated, "As legislators, I certainly don't need to tell you that whenever partisan politics is involved in an issue, there are going to be people who publicly questions your motives and your honor, for no other reason than the fact that they disagree with you on an issue. That sort of thing isn't very good in your arena. But in the judicial arena, it can have devastating consequences when you're trying to get people to accept decisions that go towards things like child custody and criminal convictions and emotional civil litigation." MR. CHRISTENSEN advised members that the concern of the court is that the two provisions which he would now address get the judiciary involved in the reapportionment process, a very political process, to a greater extent than it is now involved, which may have long-term negative consequences for the institution. Number 1394 MR. CHRISTENSEN explained that the first provision relates to the appointment of the members of the reapportionment board. The board has five members, one of whom would be appointed by the chief justice. The court is concerned about this provision because the chief justice is asked to select a person who is going to be involved in a very actively political process. Mr. Christensen stated, "He may be the deciding vote. Now, this person's life and their decisions are going to be examined in great detail, and people who don't like what they see are going to ask, 'Why did the chief justice pick that person?' You know, 'What were his real motives?'" Number 1425 MR. CHRISTENSEN continued, "The second area of concern is, I think, more significant, and that is the creation of the three-judge panel of superior court judges to act if the reapportionment board can't come to a decision. The supreme court opposes the use ... of this panel, as it's created in the original version of HJR 44, for two reasons. First, right now we have over 30 superior court judges. There are people who are going to read something political into the selection of the particular three who are chosen. I think that's inevitable. Second, understand that at least under the original version of this legislation, the three-judge panel is not operating as a judicial body making a judicial decision, which is something that we all accept. It's actually acting as an administrative body making an administrative decision. ... Human nature being what it is, I think the people who perceive themselves as the losers in the process are going to read political motives into the decision. These are things we're trying to avoid." Number 1483 MR. CHRISTENSEN advised members that in the bill draft they had been discussing, it is unclear to him whether this three-judge panel will be a judicial panel or remain an administrative panel. He referred to the question of the original jurisdiction of the supreme court. He said he doesn't believe the Alaska Supreme Court has original jurisdiction over anything to act as a trial court. He explained, "The U.S. Supreme Court does. However, my understanding is that when they exercise that jurisdiction, ... all of them don't sit there and act as a trial judge; they assign it off to a special master, or they appoint one of their members to conduct a trial. It's very, very problematic for a multimember body to conduct a trial in which evidence is taken. You know the obvious reason: People object to evidence. And a single judge can rule from the bench, but a committee of five has to step out of the room and argue it among themselves, take a vote and come back and rule. There's all kinds of issues." MR. CHRISTENSEN noted that he hadn't had this particular part of the bill draft to present to the supreme court the other day. However, he said, they have always objected when other bills were proposed that would have given them original jurisdiction. It can be extremely time-consuming, and they are just not set up to handle that sort of thing. Number 1559 CHAIRMAN GREEN asked Mr. Christensen whether, if this were left as it is, the chief justice would make this selection. MR. CHRISTENSEN replied that the constitution is the constitution, and if it requires the court or the chief justice to act, they will do so. He said he believes the concern is that yes, this is constitutional, but it has long-term ramifications for the institution. He reminded members that this is one case every ten years. However, the court system, as an institution, deals with about 150,000 cases of all kinds over the course of a year, everything from traffic tickets and small claims on up to permanent fund dividend decisions that affect everybody. "And we want to try to make sure that the institution is not negatively affected by one very limited, once-a-decade kind of case; and since this is such a high profile, then there is always that potential," he concluded. Number 1690 REPRESENTATIVE PORTER suggested it would be appropriate to explain the two proposed amendments [not formally offered], in order to get a response from Mr. Christensen. He noted that they had already held discussions with Mr. Christensen. REPRESENTATIVE PORTER indicated that as HJR 44 exists now, if the appointed four-member board cannot agree on the appointment of a fifth member, then the speaker, the minority leader and the chief justice of the supreme court would agree on a member. He said in thinking that through, he agrees that it puts the supreme court in a "mix" that they may not want to be in. He indicated the first amendment would take away the two legislators and just provide that the supreme court would make that appointment if the four-member panel could not. REPRESENTATIVE PORTER explained, "I recognize this still doesn't go all the way to the point that they would like, but, quite frankly, after a search of the state, we can't find anybody more credibly neutral than that person." He noted that the legislature, in another important area, has recognized that and has asked that the chief justice of the supreme court appoint the civilian members of the Ethics Committee, which he said has been satisfactory. He then said that is the sponsors' response to that concern. Number 1763 REPRESENTATIVE PORTER referred to the second proposed amendment. He noted that the three-judge panel selection also put the chief justice in this kind of a mix with the legislature. Therefore, they are proposing that they be selected at random from the four presiding superior court judges in the four judicial districts throughout the state. Number 1842 MR. CHRISTENSEN thanked Representative Porter, noting that they had talked the other day at length and saying the amendments go a long way towards taking care of some of the concerns raised. He stated, "It is certainly better, I think, for the chief justice to appoint alone, rather than to share a political decision with two elected leaders. That is a mix that probably isn't good." MR. CHRISTENSEN expressed appreciation for Representative Porter's kind words about the neutrality of the chief but pointed out that it can turn into a Catch-22 situation. He explained, "People want you to do stuff because they perceive you as being neutral, and when they don't like what you do, they decide that you might have been political after all. So, I just offer that." He then stated that the supreme court does not oppose giving the chief this power but just wanted to express their concern about that. Number 1915 MR. CHRISTENSEN said with regard to the second change, as he had indicated, the court had had two concerns about the use of this panel. The first was that there are more than 30 judges, and people would read a political motive into the three who are picked. Mr. Christensen said he believes the amendment proposed by Representative Porter essentially eliminates that concern. Right now, there are four presiding judges in Alaska, each appointed for a one-year term to act as the chief administrative judge for each of the four judicial districts. They have reduced caseloads and spend much of their time simply managing cases for the other judges. If three of those four were chosen, they would already have that position and wouldn't be hand-picked to handle reapportionment. MR. CHRISTENSEN pointed out, however, that another concern still exists. It is not clear to him whether the three-judge panel may or may not be acting as an administrative body, not a judicial body, which may give rise to some question. Nor is it entirely clear what their jurisdiction is, in terms of when it gets passed on up to the supreme court and when it doesn't. He noted that those are technical issues that can be worked out. Number 1996 CHAIRMAN GREEN referred to the chart and asked Mr. Christensen what his preference would be for how it would be remanded and where the hearing would occur if the state supreme court doesn't have the same hearing powers that the U.S. Supreme Court has. Number 2060 MR. CHRISTENSEN replied that a lot of these questions are policy decisions that he isn't comfortable commenting on. He added that he is not an expert on reapportionment. He offered the observation, however, that using the supreme court as a trial court could create tremendous problems. He said, "And if there is any thought that they might have to act as a fact-finder or something else, it would be very, very wise to make sure that there is a superior court in there, acting in the process. And I know there is some question as to whether or not that's what would really happen. And that may be something that requires a little more research." Number 2105 REPRESENTATIVE ROKEBERG referred to the chart and to review by the superior court and the supreme court. He asked about the standard of review and whether Mr. Christensen sees any problem on that side of the equation. MR. CHRISTENSEN replied that the court will follow the level of review that is in the constitution, which he believes is a policy question between the legislators and the voters who vote on this resolution. "But in terms of the process, I think it's less problematic because there is a fact-finder in there," he added. Number 2174 REPRESENTATIVE CROFT asked Mr. Christensen whether retention elections for the supreme court are partisan affairs now. He also asked how much money a supreme court justice spends on a retention election. MR. CHRISTENSEN said he is not an expert on this, but he believes the rules of judicial conduct only allow a justice to begin raising money once someone has filed with the Alaska Public Offices Commission (APOC) and indicated an intent to challenge. He said that hasn't happened in many years. One justice and two district court judges have been removed by the voters since statehood; very rarely has a challenge been mounted. MR. CHRISTENSEN advised members that the Alaska Judicial Council is in the process or making information even more readily available to voters than in the past. He said many people aren't aware of this, but they send a questionnaire out to all law enforcement officers in the state, to ask what they think of the judge, in great detail. That is all posted now on the Internet, where voters can get a feel for a judge if they want to. CHAIRMAN GREEN commented that he finds that particularly helpful. Number 2311 JAMES BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, specified that he was there to speak for the Administration about HJR 44. He explained that the people under his supervision have advised the reapportionment boards in the past, as legal counsel. He himself had been around through two reapportionments, or "three, I guess, if you count the two that happened during ... Governor Sheffield's administration." He therefore has some experience, although he hasn't worked directly for the boards. MR. BALDWIN indicated he had done some research into the minutes of the constitutional convention, which contain a lot of history about not wanting the legislature to be responsible for reapportionment. He advised members that the strong bias on the part of the framers was built upon what had been happening at that time, in the pre-Baker v. Carr e those days, legislatures delayed reapportionment for partisan political reasons, and they had just not done reapportionment for a number of years. The intention of the framers was to build a system that was fairly self-actuating. TAPE 98-12, SIDE A Number 0006 MR. BALDWIN said as he reads HJR 44, it would reverse the history, because now the officers within the legislature would be the appointing authorities for the reapportionment board. Effectively, it would be under the legislative branch, or at least that is how people would view it. MR. BALDWIN noted that one of his other jobs is advising the Division of Elections on how issues should appear on the ballot, helping that division write the ballot title and an impartial summary. He said with all due respect to the sponsors, as he looks at this chart, listens to the discussion, and looks at HJR 44, he wonders how they are going to do that in a way that the electorate will understand. Number 0120 MR. BALDWIN reminded members that when the constitution was written in the late 1950s, it used the most sparing language possible to clearly convey the ideas that were going to become the highest law of our land. However, HJR 44 recognizes officers that the constitution has never recognized before. For example, minority members are not recognized officers but partisan political appointments of private, partisan political organizations. Minority caucuses and majority caucuses are private political organizations, not official organizations of the state government. Mr. Baldwin explained, "They are established for purposes of operating the legislature, but they are not official, by any means. They are partisan organizations, and we will now enshrine them in the constitution." Number 0210 MR. BALDWIN said he hoped his comments would be taken right, then characterized this as a "Rube Goldberg approach," explaining that Rube Goldberg created complicated, fanciful machines to accomplish a simple task at the end. Mr. Baldwin said as he sees it, if one thing goes wrong anywhere along this stream of actions that must operate in concert, "we've got a terrible mess on our hands." MR. BALDWIN pointed out that some situations described by Representative Rokeberg have happened in Alaska. For example, Mr. Baldwin recalled a deadlock for nearly a month at the beginning of the session when the House couldn't pick its leaders. He cautioned that with the constitution, they are looking ahead 50 to 100 years, not just five years in advance. Although there is currently a strong majority in the legislature, with responsible leadership, that may not always be the case in the future. Number 0335 MR. BALDWIN brought up a list of questions: "What happens if there is a split in the leadership, and there are two speakers of the House? This happened in the state of Washington. The coalition in the Senate is a wonderful example, where you have no minority; what happens then? What happens if this board gets together and there is no plan within the first 30 days? The constitution says there shall be a plan. What if there's no plan? What does a three-judge panel have to select from? Nothing. That's the end of that decision chain." MR. BALDWIN advised members that he has other questions, but those had come to mind. He recounted an occasion when the Senate Judiciary Committee was considering another constitutional amendment; Judge Stewart, who had been present when the constitution was written, had recommended to the Senate that when there is a matter this far-reaching in consequence, perhaps it should lie on the table for a while, so that people can think about it, read it and understand it before adopting it. Number 0456 MR. BALDWIN reminded members that in 2002, the state is set for another decennial vote on a constitutional convention. He asked, "And why not let something like this soak for a while, so that if the people want to vote for a convention, they can take it up and resolve it?" Number 0489 MR. BALDWIN brought up another legal point: He sees a problem with the provision for when the old plan would cease to be effective and the transition to the new plan. He stated, "I know where you want to be. The situation you want to be in is not having the court rewrite the plan; and believe me, the Governor wants to be in that position, too. Every governor that I've known that has issued a reapportionment plan had many unspeakable things to say about having his plan rewritten. ... But that's been how it is. It's viewed as a protection in some quarters. It's a protection of the court system, which is, just as the previous testifier stated, an impartial body, which is what the public might view as a safeguard here." Mr. Baldwin said that both in Alaska and in other states, there is very rarely a situation where there isn't litigation in connection with a reapportionment plan. MR. BALDWIN said there is a built-in incentive here for people to sue to prevent the transition from happening; if they can hold it up for 60 days, there is no transition to the new plan. As he reads it, the old plan stays in effect. Mr. Baldwin stated, "What has happened in the past is we have transitioned for one election, and then while that transition has gone into effect, they have rewritten the plan." Number 0610 REPRESENTATIVE PORTER responded that HJR 44 envisions that the work will continue until a plan is developed. Although it may miss the time table for the upcoming election, it would be in place for the next election. He said if that is not clear, they would try to clarify it in the resolution. REPRESENTATIVE PORTER added, "The way the constitution is right now, I think you agree, there's a big gray area there: What if you don't have a plan and the other one's already expired? Then you are up a creek. But what we're allowing is that the old plan would stay in effect for that one election, until all the litigation and whatever it was that was holding it up was completed, the process is over, ... a plan is finally published. And that is the plan for the next election." Number 0683 MR. BALDWIN responded that there is a real incentive there for someone to bring an action to try to keep the new plan from going into effect. REPRESENTATIVE PORTER suggested that worse than that would be having no plan, and no election. MR. BALDWIN replied, "If history is any indication, though, what has happened - and this may be something of a policy matter that you disagree with - is that the plan that the board proposed, the most recent plan, has gone into effect." He said that has then been adjusted by referral to a master or to a judge, for example. He noted that the second plan under Governor Hickel's administration went first to a master, then back to the board, which came up with the final version. MR. BALDWIN said HJR 44 incorporates other provisions that he had testified on regarding HJR 36. He stated, "And I just want to quickly say that we think that the ability to do multimember districts is a valuable tool, and this would remove that. I know that's your intention, and I think -- I'd just ask you to harken back to that testimony." MR. BALDWIN asked whether his understanding was correct at the hearing on HJR 36 that the committee's intention is that the reapportionment board not have the ability to do military surveys for active duty military or to deduct active-duty nonresident military from the statewide population totals. Number 0815 CHAIRMAN GREEN replied, "What I think they were indicating was that the population of service people would be given to us, and that the current attitude of the military is not ... to segregate those. We can't actually get accurate figures from that." MR. BALDWIN stated his understanding that the wording was designed so that a future board would only be able to reapportion based on the census numbers, and there would not be the ability to deduct the nonresident military voter from that total. CHAIRMAN GREEN said it wouldn't be required. Number 0856 REPRESENTATIVE PORTER said that is correct; this would guide it to take the numbers presented from the census. He stated, "I can't remember which review case it was, but when the issue came up, the constitution -- as it's currently worded, saying that it would be based on the civilian population is unconstitutional by federal law. So, the court has asked, in that case and a couple of others, to please clean up your constitution. All of the court's concerns that have been expressed in case law are reflected in this revision." REPRESENTATIVE PORTER said he believes that in the Hickel case, the nonresident military population was addressed. Noting that he was paraphrasing, he stated that the board at that time said they couldn't do it, and the court agreed that it seemed to be an impossible task. Representative Porter stated, "So, we said, 'Why repeat that effort?'" Number 0833 MR. BALDWIN offered his perspective on that case. The court had said there is an obligation to attempt to undergo the analysis to determine whether they can deduct nonresident military voters from the totals, to prevent overrepresentation of certain districts as opposed to the rest of the state. In 1990, the board justified - going through a rather extensive analysis - that it was unable to determine that population. And in any case, the numbers were small. "And that's what the case said," Mr. Baldwin added. MR. BALDWIN suggested in the next reapportionment it is likely there will be a loss of minority representation for House seats, because of population shifts. It will be very close, and to prevent that, we may need to look at doing a nonresident voter survey. Mr. Baldwin commented, "Again, we're going to have to do that anyway, under the way the constitution reads now, and under the court decisions, and that with the base realignments and closings, it's going to become even more critical that we be able to do that, in order to deal with possible retrogression situations and claims under Section 5 of the voting rights Act." He mentioned the necessity of preclearing plans with the justice department. Number 1020 MR. BALDWIN advised members that with Adak closing by the next reapportionment, the military population will be focused in Fairbanks and Anchorage. He had run some rough numbers that day. The latest official state population is around 611,300. Mr. Baldwin stated, "That would mean an ideal district of somewhere around 15,200. We did a run with the permanent fund numbers under the last application. ... People who are claiming a permanent fund dividend have to check a box, 'Are you military? Active duty military?' And we came up with 9,000 people who checked those boxes, who, under the permanent fund standard of residency are ... on active duty and are claiming residency." MR. BALDWIN said the strength of active military personnel in Alaska is around 18,000 now, not counting military dependents who may or may not be claiming residency. He pointed out that the rough estimate of 9,000 is over half a district, no "small potatoes." Mr. Baldwin commented, "That could be seen as giving us the ability to deal with a retrogression situation." MR. BALDWIN referred to suggestions at the previous bill hearing that many military people claim residency to attain a permanent fund dividend (PFD). He said he doesn't think that is the case. Many military people, if they change residence, lose their right to be shipped back to their home of record, which is very costly and outweighs the PFD. Mr. Baldwin said while their dependents may claim residency and get PFDs, 40 to 50 percent of the military personnel do not. MR. BALDWIN stated, "And under the case law, as I understand it, we have the ability to take those people out of the count. And what that means, on a regional basis, would mean that those districts which have military personnel residing in them will be overcounted. Their population will be overweighted, as opposed to those who do not. So, it's a regional issue in the state. I don't see it as being a partisan issue in the state. I see it as being a regional issue in the state for the next reapportionment." Number 1190 CHAIRMAN GREEN asked, in Mr. Baldwin's study, how many of those were living off-base in Alaska. He stated, "I mean, you begin to see the problem that we get into, no matter what system we use, and that the military themselves do not furnish us the necessary information anymore. So, I'm not sure how you would suggest that we go about changing that count." MR. BALDWIN replied that he is not sure how he would do it, either. The numbers he ran from the Permanent Fund Dividend Division, which can also be obtained from the state demographer, show all in-Alaska zip codes. The figures he'd used were for those people who had checked on the PFD application the box that says, "I was on military duty during the last application period." Number 1225 REPRESENTATIVE PORTER asked for confirmation that Mr. Baldwin wasn't suggesting that those people who have indicated they are Alaskan residents, and who are in the military, should be excluded. MR. BALDWIN said no, just the ones who are here, who are not claiming Alaska residency. Number 1241 REPRESENTATIVE PORTER said he had some different numbers than Mr. Baldwin had. He had checked with the military and found that they haven't had, don't have, and have no intention of having available a distinction that they could provide between residents and nonresidents. REPRESENTATIVE PORTER stated, "The courts finally indicated that the number was insignificant. They seem to indicate that in any event, it's their experience and opinion that a very high majority of folks up here do sign up for the permanent fund dividend, indicating, then, that they are a resident; they wouldn't be excluded anyway." He suggested that the amount of money a military family could amass in a three-year assignment could get them back and forth several times. He indicated he would get more numbers relating to that. Number 1307 REPRESENTATIVE CROFT asked Mr. Baldwin whether there is any principle of federal law that requires that they count people who are not residents of the state. MR. BALDWIN replied that the decennial census counts them when they are here; he doesn't believe it distinguishes between residents and nonresidents. He said he is not really well-informed on the census rules, but he had asked the demographer: If our military people who can claim residency are assigned outside of the state, to another state, would they somehow be allocated back to Alaska? "And he said no," Mr. Baldwin concluded. Number 1350 REPRESENTATIVE CROFT asked whether the case law they had talked about, or any other federal case, required that they count nonresidents, whether they be military personnel or others, when doing reapportionment. MR. BALDWIN replied, "No, it did not require us to count them." He noted that the Southeast Conference case, 846 P.2d 38, said that "we were acting reasonably by not counting them." He added, "But it said that we had to go through the exercise of convincing ourselves, or convincing the court, that ... we didn't need to count them." Number 1393 REPRESENTATIVE CROFT noted that they are talking about the military. He pointed out, however, that Alaska sometimes has a significant nonresident population, such as occurred when the pipeline was being built. He asked, "If this amendment, as it's currently drafted, is enacted, will we be required to count those nonresidents as residents?" Number 1431 REPRESENTATIVE PORTER replied, "We would be required, under this proposal, to adopt the decennial census as the basis for our reapportionment. To the extent that there are nonresident military in it, the answer would be yes. I would only add that in our anecdotal checking ... with folks that are familiar with the process - the census bureaus and past reapportionment people - I'm of the opinion, and they were, that, based on what they said, that other nonresident civilians are caught up in our census, also. They're supposed to take people at their normal place of abode. And I would suggest that there's an awful lot of camp construction activity in the Bush - not downtown Anchorage or Fairbanks, but in the Bush - where folks spend a considerable amount of months working, but they go back home to wherever they live afterwards. And if they got caught on the snapshot of the state, that's their normal abode, and they'd be counted. So, I think that balances out, quite frankly." CHAIRMAN GREEN mentioned students, as well. Number 1489 REPRESENTATIVE BERKOWITZ suggested that what has gone unsaid is that the military personnel will vote Republican, whereas the people in the labor camps will be Democrats. He said he doesn't think that is the case. He said he understands using the decennial census as a starting point, but that he thinks what Representative Croft is driving at is to ensure that when we do have a snapshot of Alaska, the people are permanent residents, not those who are passing through and have a transient interest in the state. Number 1543 REPRESENTATIVE ROKEBERG pointed out that there is a major controversy nationwide about the method of counting being proposed for the new decennial census, which he said has "very partisan-type aspects to it as to the extrapolation of phantom or homeless people and so forth, which would just have the very opposite effect of what you were talking about." Number 1579 CHAIRMAN GREEN noted that if this is going to be a major concern, a member of the legislature has been intimately involved in census-taking and c in the year 2000. Number 1593 REPRESENTATIVE PORTER clarified that he wasn't implying that the military personnel are Republicans and the camp workers are Democrats. He stated, "The whole idea that I got from Mr. Baldwin's presentation was that the population shift would leave the rural areas with less representation. What I'm saying is that I think that there's a balance of, if you will, nonresidents in the Bush, just as much as there would be nonresident military in the urban areas if all the base closures end up creating that situation, so that those populations would be balanced out. But our constitution - which we're not changing, by the way - provides that the apportionment board would look at, first, dividing it up proportionately, because that's federal law, by numbers, then to look at continuity, contiguousness and socioeconomic groupings. Most states go between 1 and 2 percent variance in their election districts and have to justify anything over that. ... By case law, ours in 10 percent and justifying something over that. So, I don't think that we're constrained, by this proposal, from great consideration for minority populations." Number 1669 REPRESENTATIVE JAMES suggested that if Mr. Baldwin was saying the system is working fine, she disagrees. She mentioned the perception that construction workers are of one philosophy, whereas the military are of another. She said that is the perception that the public lives with on a daily basis, and there is questioning of anything people do as being partisan-motivated. REPRESENTATIVE JAMES said redistricting in Alaska has been partisan-motivated, and anything that eliminates that is well-worth their efforts to try to find some common ground. She said that is one reason she appreciates having HJR 44 before the committee. REPRESENTATIVE JAMES acknowledged that there is no quick or easy fix. She said it will take good heads to come together, to try to make it so that "the vision in the redistricting does not greatly change or persuade a different philosophy than we currently have in the state." She said there has been gerrymandering every ten years, and to eliminate that should be the goal. She pointed out that there is a natural pendulum swing by the public. She stated, "That's all we need. We don't need to redistrict places to make it be an advantage for one party or the other, no matter which it is, because then the public ... is not served well." Number 1784 REPRESENTATIVE PORTER said they have tried to come up with a bill that presents a fair way of reapportionment, absolutely as fair as possible. However, he would ask Mr. Baldwin to provide input on anything in HJR 44 that doesn't look fair, outside of policy decisions, or on anything that would be problematic in terms of there being a better way to do it. MR. BALDWIN replied, "We do want to follow this process and offer our constructive comments. I would just say that reapportionment is a very difficult job. It's made difficult by geography and sparse populations spread over a wide area. I've been working in connection with ... many of the boards and the staff who have worked for those boards. And I know when they've come out of the process, ... they firmly believe that what they did was a fair and nonpartisan approach." MR. BALDWIN agreed with Mr. Christensen that people get offended by the process because they don't get out of it what they want. He noted that the drawing of boundaries for local governments is not done by the legislature but by a separate, independent board, because that is such a contentious issue. He said it is the same kind of thing for reapportionment. While there have been allegations of gerrymandering and that sort of thing, it is a really tough job to try to make those lines work with what there is to work with. Mr. Baldwin said he thinks that everyone who has approached the job has done it honorably. Number 1887 CHAIRMAN GREEN noted the lateness of the hour. He then referred to Mr. Baldwin's testimony on HJR 36 before the House Finance Standing Committee, which he said had castigated the current committee as not doing its job. He asked that in the future, if Mr. Baldwin had disagreements, that he bring them to the relevant committee rather than to another committee. MR. BALDWIN apologized, saying he didn't mean to have Chairman Green take offense. He stated, "In the heat of the moment - the bill was moving quickly - I did not show the respect to you or this committee I'm sure that you deserve. I felt that a bill had come out of this committee that did not reflect ... what had been passed out here. And so, I meant to bring that to the attention of the next committee and thought that it would be corrected. Again, I apologize. ... I didn't mean to do anything that would show lack of respect to this committee." REPRESENTATIVE ROKEBERG said he had questions of the sponsor but would talk directly to him. Number 1985 CHAIRMAN GREEN announced they would hold over HJR 44, expressing his understanding that the sponsor would consider the comments that had been made. ADJOURNMENT Number 1991 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee meeting at 3:23 p.m.

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