Legislature(2001 - 2002)
04/29/2002 01:48 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 29, 2002
1:48 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Jeannette James
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Scott Ogan, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 331
"An Act relating to the jurisdiction of district courts."
- MOVED SB 331 OUT OF COMMITTEE
SENATE JOINT RESOLUTION NO. 38
Proposing amendments to the Constitution of the State of Alaska
relating to information regarding proposed expenditures.
- HEARD AND HELD
PREVIOUS ACTION
BILL: SB 331
SHORT TITLE:DISTRICT COURT JURISDICTIONAL AMOUNT
SPONSOR(S): SENATOR(S) THERRIAULT
Jrn-Date Jrn-Page Action
02/19/02 2239 (S) READ THE FIRST TIME -
REFERRALS
02/19/02 2239 (S) JUD
03/04/02 (S) JUD AT 1:30 PM BELTZ 211
03/04/02 (S) Moved SB 331 Out of Committee
03/04/02 (S) MINUTE(JUD)
03/06/02 2386 (S) JUD RPT 3DP 1NR
03/06/02 2386 (S) DP: TAYLOR, COWDERY,
THERRIAULT;
03/06/02 2386 (S) NR: ELLIS
03/06/02 2386 (S) FN1: ZERO(CRT)
03/13/02 (S) RLS AT 11:00 AM FAHRENKAMP
203
03/13/02 (S) MINUTE(RLS)
03/18/02 2450 (S) RULES TO CALENDAR 3/18/02
03/18/02 2452 (S) READ THE SECOND TIME
03/18/02 2452 (S) ADVANCED TO THIRD READING
UNAN CONSENT
03/18/02 2452 (S) READ THE THIRD TIME SB 331
03/18/02 2452 (S) PASSED Y18 N- E2
03/18/02 2457 (S) TRANSMITTED TO (H)
03/18/02 2457 (S) VERSION: SB 331
03/19/02 2599 (H) READ THE FIRST TIME -
REFERRALS
03/19/02 2599 (H) JUD
04/29/02 (H) JUD AT 1:00 PM CAPITOL 120
BILL: SJR 38
SHORT TITLE:CONST AM: PRIORITY OF EXPENDITURES
SPONSOR(S): SENATOR(S) KELLY
Jrn-Date Jrn-Page Action
02/19/02 2226 (S) READ THE FIRST TIME -
REFERRALS
02/19/02 2226 (S) STA, JUD, FIN
02/26/02 (S) STA AT 3:30 PM BELTZ 211
02/26/02 (S) Moved SJR 38 Out of Committee
02/26/02 (S) MINUTE(STA)
02/27/02 2318 (S) STA RPT 3DP 1NR
02/27/02 2318 (S) DP: THERRIAULT, HALFORD,
PHILLIPS;
02/27/02 2318 (S) NR: STEVENS
02/27/02 2318 (S) FN1: (GOV)
03/18/02 (S) JUD AT 1:30 PM BELTZ 211
03/18/02 (S) Moved Out of Committee
03/18/02 (S) MINUTE(JUD)
03/20/02 2472 (S) JUD RPT 3DP 1NR
03/20/02 2472 (S) DP: TAYLOR, COWDERY,
THERRIAULT;
03/20/02 2472 (S) NR: ELLIS
03/20/02 2472 (S) FN1: (GOV)
03/22/02 (S) FIN AT 9:00 AM SENATE FINANCE
532
03/22/02 (S) Moved Out of Committee
03/22/02 (S) MINUTE(FIN)
03/22/02 2501 (S) COSPONSOR(S): DONLEY, LEMAN
03/22/02 2496 (S) FIN RPT 5DP 4NR
03/22/02 2496 (S) DP: DONLEY, KELLY, GREEN,
WARD, LEMAN;
03/22/02 2496 (S) NR: AUSTERMAN, HOFFMAN,
OLSON, WILKEN
03/22/02 2496 (S) FN1: (GOV)
03/26/02 (S) RLS AT 11:00 AM FAHRENKAMP
203
03/26/02 (S) MINUTE(RLS)
03/28/02 2556 (S) RULES TO CALENDAR 1OR 3/28/02
03/28/02 2559 (S) READ THE SECOND TIME
03/28/02 2559 (S) ADVANCED TO THIRD READING FLD
Y14 N3 E3
03/28/02 2560 (S) ADVANCED TO THIRD READING 4/2
CALENDAR
04/02/02 2592 (S) READ THE THIRD TIME SJR 38
04/02/02 2592 (S) HELD IN THIRD READING TO 4/8
CALENDAR
04/08/02 2663 (S) BEFORE THE SENATE IN THIRD
READING
04/08/02 2664 (S) PASSED Y14 N5 E1
04/08/02 2664 (S) ELTON NOTICE OF
RECONSIDERATION
04/09/02 2692 (S) RECONSIDERATION NOT TAKEN UP
04/09/02 2693 (S) TRANSMITTED TO (H)
04/09/02 2693 (S) VERSION: SJR 38
04/10/02 2861 (H) READ THE FIRST TIME -
REFERRALS
04/10/02 2861 (H) STA, JUD, FIN
04/16/02 (H) STA AT 8:00 AM CAPITOL 102
04/16/02 (H) Scheduled But Not Heard --
Recessed to Thurs. 4/18/02 --
04/18/02 (H) STA AT 8:00 AM CAPITOL 102
04/18/02 (H) Heard & Held
MINUTE(STA)
04/23/02 (H) STA AT 8:00 AM CAPITOL 102
04/23/02 (H) Moved Out of Committee
MINUTE(STA)
04/23/02 3094 (H) STA RPT 2DP 5NR
04/23/02 3094 (H) DP: STEVENS, FATE; NR:
WILSON,
04/23/02 3094 (H) CRAWFORD, JAMES, HAYES,
COGHILL
04/23/02 3094 (H) FN1: (GOV)
04/29/02 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
ZACH WARWICK, Staff
to Senator Gene Therriault
Alaska State Legislature
Capitol Building, Room 121
Juneau, Alaska 99801
POSITION STATEMENT: Presented SB 331 on behalf of the sponsor,
Senator Therriault.
GWENDOLYN HALL, Staff
to Senator Pete Kelly
Alaska State Legislature
Capitol Building, Room 518
Juneau, Alaska 99801
POSITION STATEMENT: Presented SJR 38 on behalf of the sponsor,
Senator Kelly.
JACK KREINHEDER, Chief Analyst
Office of the Director
Office of Management & Budget (OMB)
Office of the Governor
PO Box 110020
Juneau, Alaska 99811-0020
POSITION STATEMENT: During discussion of SJR 38, provided
comments on behalf of the administration.
ACTION NARRATIVE
TAPE 02-57, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:48 p.m. Representatives
Rokeberg, James, Coghill, Meyer, and Berkowitz were present at
the call to order. Representative Kookesh arrived as the
meeting was in progress.
SB 331 - DISTRICT COURT JURISDICTIONAL AMOUNT
Number 0030
CHAIR ROKEBERG announced that the first order of business would
be SENATE BILL NO. 331, "An Act relating to the jurisdiction of
district courts."
Number 0049
ZACH WARWICK, Staff to Senator Gene Therriault, Alaska State
Legislature, said on behalf of Senator Therriault, sponsor, that
SB 331 will clarify the statute relating the civil awards in
district court cases. He said that current statute stipulates
that the plaintiff in a district court case is limited to an
award of $50,000; it's not clear, however, whether it's $50,000
per defendant or per case. Senate Bill 331 will add language
clarifying that the $50,000 limit is per defendant. Without
this clarification, plaintiffs in civil cases with multiple
defendants must decide whether to file multiple suits or combine
them into one case. Mr. Warwick added that SB 331 is
"especially important to rural areas where there isn't access to
superior courts."
REPRESENTATIVE COGHILL indicated that he has a concern regarding
the title.
REPRESENTATIVE BERKOWITZ said he likes the title, mentioning
that he has a conceptual amendment, which he will be offering on
the House floor. He noted that he and Representative Meyer have
been working on issues pertaining to jurisdictions. Given that
the title of SB 331 reads, "An Act relating to the jurisdiction
of district courts", he said it seems to him that the [the body]
could extend that jurisdiction as far as it rightfully ought to
go - "as far as it possibly can."
REPRESENTATIVE COGHILL acknowledged that "the title does lend
itself to general applicability."
REPRESENTATIVE BERKOWITZ indicated that what he has in mind is:
The jurisdiction of the district courts would extend
to protect Alaskans anywhere they were; if anyone
visited harm on them, and assuming that the
appropriate authority - if it was either in a
different country or different state - if they didn't
choose to exercise their jurisdiction, then the
Alaskan jurisdiction would exist as a safety net to
protect the interests of Alaskans.
CHAIR ROKEBERG suggested that such an [extension of
jurisdiction] might be "entering the area of conflict of laws."
REPRESENTATIVE BERKOWITZ said, "No, not if we structure this
appropriately; and it's actually visions of law that other
states have."
Number 0464
REPRESENTATIVE JAMES moved to report SB 331 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, SB 331 was reported from the
House Judiciary Standing Committee.
CHAIR ROKEBERG called an at-ease from 1:55 p.m. to 1:57 p.m.
SJR 38 - CONST AM: PRIORITY OF EXPENDITURES
[Contains mention of HB 349.]
Number 0479
CHAIR ROKEBERG announced that the last order of business would
be SENATE JOINT RESOLUTION NO. 38, Proposing amendments to the
Constitution of the State of Alaska relating to information
regarding proposed expenditures.
Number 0527
GWENDOLYN HALL, Staff to Senator Pete Kelly, Alaska State
Legislature, said on behalf of Senator Kelly, sponsor, that SJR
38 will amend the Alaska State Constitution such that the
governor will be required to submit a prioritized budget to the
legislature. She said of the sponsor that:
He sees this as a "communicative tool" between the ...
executive branch and the legislative branch. And in a
time of such fiscal crises, ... we feel that the
administration would be the best source of information
as to what programs or services would be best to cut,
since they are the folks that deal with the services
and programs every day.
REPRESENTATIVE BERKOWITZ asked: "What does this look like?
Practically speaking, what would it look like?"
MS. HALL, in response, said:
We actually got this idea from the governor when he
was the mayor of Anchorage. Annalee McConnell
submitted her budget in a prioritized fashion to the
[Anchorage Assembly], and so I'm sure we could call
the governor's office ..., get a copy of that, ... and
... see what that would look like.
REPRESENTATIVE BERKOWITZ said:
I'm curious to know how we would do this. I mean,
would [he/she] prioritize item by item through the
budget? Would [he/she] prioritize [one] department
over other departments?... Would [he/she] prioritize
constitutional over, say, moral? I mean, I just don't
understand how/what it would look like, physically.
Would it become a bound piece of paper? Would it come
in the form of a bill? Would failure to comply with
it be actionable?... It's just very confusing.
REPRESENTATIVE JAMES said: "It's all statutory language to
implement this constitutional amendment."
REPRESENTATIVE MEYER remarked that there were similarities
between SJR 38 and a bill sponsored by Representative Fred Dyson
- HB 349. He then spoke briefly of the Anchorage Assembly
budget process.
MS. HALL pointed out that SJR 38 differs from the aforementioned
bill in that it is a constitutional amendment, and, as such,
will protect a prioritized budget from constitutional challenges
based on separation of powers.
Number 0795
REPRESENTATIVE BERKOWITZ remarked that SJR 38 appears only to
focus on the operating budget but does not address the capital
budget. Why the distinction?
REPRESENTATIVE MEYER noted that the Anchorage Assembly budget
process is similar in that regard, mentioning that in Anchorage,
the capital budget is "bonded for."
REPRESENTATIVE BERKOWITZ pointed out, however, that at the state
level, "we don't bond." He predicted that if the capital budget
is not woven into "this constitutional requirement, it might
create some difficulties."
CHAIR ROKEBERG surmised that SJR 38 was introduced in reaction
to the "administration's failure to act on legislative
requests." He noted that the Department of Education and Early
Development already prioritizes its capital expenditures.
REPRESENTATIVE BERKOWITZ argued, however, that "that's
prioritization within the capital [budget], and it doesn't
integrate the capital requests in with the operating requests."
He elaborated:
For example, you might say, "I would rather fund
[Alaska State] Troopers than build the road here," but
if you segregate the two, you don't have the
opportunity under this constitutional amendment to
make that decision, because the capital budget is
separate from the operating budget.
REPRESENTATIVE KOOKESH returned to the issue of the Department
of Education and Early Development's capital budget priorities,
and recalled that a few years ago, he'd stood up on the House
floor and asked why the legislature was jumping from number [32]
to number 59 in order to fund carpets in the Matanuska-Susitna
valley. "The prioritization didn't work there," he pointed out,
so "why should it work here."
CHAIR ROKEBERG said he recalled that incident.
REPRESENTATIVE BERKOWITZ suggested, "What if we were to
constitutionally require the legislature to follow the
'executively generated' lists?"
CHAIR ROKEBERG suggested to Representative Berkowitz that he
offer an amendment to that effect.
REPRESENTATIVE JAMES, on Representative Kookesh's point,
surmised that sometimes items on a priority list are passed over
because they are too big, and by passing such items over,
several smaller projects can be funded instead. Therefore, she
opined, any kind of prioritization is never going to work
perfectly and will be subjective, although this does not mean
that prioritization shouldn't be done. She indicated that she
is in favor of SJR 38 because currently, the administration does
not always spend funds according to the [legislature's
allocations]. She posited that SJR 38 would provide for better
communication between the administration and the legislature.
Number 1214
JACK KREINHEDER, Chief Analyst, Office of the Director, Office
of Management & Budget (OMB), Office of the Governor, said:
The administration's main concern with SJR 38 is not
with the priority budgeting issue per se, but with the
fact that we view this amendment as completely
unnecessary, and do not see any separation of powers
issue here.... Our viewpoint is that the legislature
does have complete authority to direct the
administration to provide or request information in
the Executive Budget Act; we've had an Executive
Budget Act on the books now for, I'm not sure how
long, but it goes into some detail, [and] it's been
modified in recent years to require the performance
measures - mission and measures information - that I
think we've been working on fairly cooperatively with
the legislature.
So the legislature does have clear legal authority to
say more than what the constitution says, which is one
line that the governor shall prepare a budget every
year. And the legislature's done that in the
Executive Budget Act. So, HB 349 would modify the
Executive Budget Act, as was mentioned, to do just
what this requires, and we would have no intention of
challenging that in court, and the lawyers tell me
that we wouldn't have any basis to. So, again, ...
our concern with this resolution is not so much with
the priority budgeting per se, it's just that it's
completely unnecessary [and] would clutter up the
[Alaska State] Constitution....
MR. KREINHEDER, on the issue of the Anchorage Assembly budget
process, relayed that Ms. Frasca, "the budget director of
Anchorage," has testified that attempting to mirror Anchorage at
the state level would be a major change and be quite expensive.
Should HB 349 pass, he remarked, although the administration
would attempt to be responsive, there will be limits to what can
be done without additional funds.
Number 1409
MR. KREINHEDER offered the following as an example of the
administration's concern regarding a prioritized budget:
It's kind of an abstract concept, but ..., for
example, is it more important for Alaska State
Troopers to investigate homicides or write parking
tickets? Well, that's an easy one. But what about
the Department of Revenue? How would all of you
prioritize these functions: collecting oil and other
taxes, managing the state's investments, paying
permanent fund dividends, or, the administrative
functions that run the department? Well, most people
probably put the administrative functions at the
bottom, but if there's nobody there to write the
paychecks, then [who does] the other work? And in the
first three, frankly, we'd have a very difficult time
trying to rank any those key functions of the
department. So, it just comes down to a philosophy,
and our viewpoint is that trying to do this sort of
priority budgeting at the state level is a simplistic
approach that is better directed at really looking at
specific functions, if that's what we're talking about
eliminating or reducing.
REPRESENTATIVE JAMES noted that in the private sector, budgets
start at zero and all expenditures have to be justified and
reevaluated periodically, because corporations want to be sure
that they are "mean and lean" and not wasting money on anything
that would reduce their profit level. Unfortunately, she
remarked, government doesn't have that ability, noting that
usually a review of the budget is based on what was spent the
prior year. She opined that even if SJR 38 did result in the
budget process taking more time, it would be good to take that
time in order to determine specifically what would be best for
each department. She asked Mr. Kreinheder which he prefers, a
prioritized budget or a zero-based budget.
MR. KREINHEDER surmised that a zero-based budget at the state
level would be too cumbersome and not an efficient use of
resources, as was found to be the case by most states that
attempted that type of budget process. Budgeting resources, he
opined, would be better spent "looking at ... the guts of the
programs" to determine which should get more money and which
should get less.
REPRESENTATIVE JAMES acknowledged that government cannot be run
like the private sector because they have different jobs to do.
She noted, however, that government tends to grow its budget by
spending all its money so that it can ask for the same amount
the following year. She offered that SJR 38 will provide a way
in which to determine how such practice can be restricted or
eliminated, and surmised that the executive branch is in the
best position to make that determination.
Number 1674
MR. KREINHEDER said that he understood Representative James's
concern, noting that even "a flat budget" is a difficult place
to start from and requires budget reductions in some areas in
order to absorb increases in fixed costs. He reiterated [the
OMB's] position that instituting a priority budget is not the
best approach at the state level, noting Annalee McConnell is
very familiar with that type of budgeting process. He
acknowledged that government growth is one of the public's major
concerns, but pointed out that growth in the government of a
growing state is not necessarily a bad thing: "you've got more
kids, you need more teachers; you've got more population, you
need more roads, you need more Troopers, and so on, just to keep
the same level of service." He remarked that even though some
are hoping to hold government spending at the same level for the
next 20 years, it is going to come down to a choice between
running the state into the ground and providing an adequate
level of public service.
REPRESENTATIVE JAMES opined that there should be a priority for
spending which includes growing the economy.
MR. KREINHEDER, in response to questions, agreed that the
administration's position is that SJR 38 will be redundant if HB
349 passes; he remarked, however, that he could not comment on
whether the governor intends to veto HB 349, reiterating that
the administration would not challenge HB 349 on a separation of
powers issue. He noted that although the administration does
not feel that mirroring Anchorage's budget process is realistic,
it would make a good faith effort to comply. He said that the
current state budget process does involve priorities, but not to
the point of ranking, for example, whether collecting more oil
taxes is more important than managing the "billions of dollars
we have in the bank."
REPRESENTATIVE BERKOWITZ asked, "What happens when the
legislative branch doesn't like the executive branch's
priorities?"
REPRESENTATIVE MEYER replied, "Then we adjust it."
REPRESENTATIVE BERKOWITZ said, "So, ... what's different than
what we do now?"
REPRESENTATIVE MEYER indicated that at least [the legislature]
would know what [the administration's] priorities are before any
adjustments are made.
REPRESENTATIVE BERKOWITZ opined that the fact that items are
included in the governor's budget should indicate to the
legislature that those items are a priority. "And when we
modify those budgetary amounts or delete them entirely, we're
indicating legislative priority, aren't we?" he asked.
Number 2013
CHAIR ROKEBERG closed public testimony on SJR 38.
REPRESENTATIVE MEYER said he supports SJR 38, noting that in
Anchorage, the prioritized budget process forced communication
between the mayor and assembly. He opined that a similar system
would do the same at the state level between the legislature and
the administration.
REPRESENTATIVE KOOKESH referred to subsection (b) in Section 2
of SJR 38. He said:
If people are so supportive of this kind of
documentation, why are we leaving it ...
[discretionary]? On the end of (b), [it says] "if the
legislature requests the information by concurrent
resolution". Is it in case somebody other than the
party that's currently in there gets elected? I mean,
if you're going to do this, then let's do it. Why do
you have the "out" on there? Why do you have "if the
legislature requests [the] information"? Why don't
you just say, "the governor shall submit ... under
this section", period?
MS. HALL said she has not yet had a chance to ask the sponsor
why that language was included.
CHAIR ROKEBERG said that Representative Kookesh has a valid
point.
REPRESENTATIVE COGHILL relayed that in the House State Affairs
Standing Committee, the sponsor had indicated that there may be
"some executive and legislative branches that might work a
little closer together, and there might be a time when the
legislature may have to request it, and this is a tool to make
sure that the request is fulfilled."
REPRESENTATIVE BERKOWITZ indicated that the inclusion of such
language signals to him that, clearly, this is a political bill,
because it cuts the minority out.
REPRESENTATIVE KOOKESH said that regardless of which party is in
the majority or which party the governor is from, requiring
information by concurrent resolution "puts politics into it."
If that language is removed and a period is placed after
"section" on line 15, he opined, then, regardless of who the
governor is, he/she will be required to submit a priority list.
Number 2180
REPRESENTATIVE COGHILL observed that much of the constitution
has been drafted to "protect the inclusion of the minority." He
posited that SJR 38 was crafted with the idea that there would
be tension between the two branches of government, regardless of
politics.
REPRESENTATIVE KOOKESH reiterated his point: "If we thought we
needed this, then why are we giving an out? If we think this
legislation is so important, why are giving an out by saying
unless a concurrent resolution is adopted ... there's no
requirement here?"
CHAIR ROKEBERG said that although he agrees with Representative
Kookesh's point, almost everything they do involves some degree
of politics. He agreed that SJR 38, as currently worded, would
more often come into play in a "more hostile type of
relationship" between the administration and the legislature.
REPRESENTATIVE COGHILL, referring to the concurrent resolution
requirement, said that it is important to ensure that the
minority has significant input. He recalled that only a simple
majority is needed to pass a concurrent resolution; thus,
conceivably, the minority would not be completely
disenfranchised.
REPRESENTATIVE JAMES opined that SJR 38 would simply be
providing the legislature with a way to require this information
should the administration not come forward with it voluntarily.
With a concurrent resolution requirement, it would meant that at
least half of the legislature wants the information.
REPRESENTATIVE COGHILL noted that with the language requiring a
concurrent resolution, there would at least be further
discussion during the legislative process, whereas if that
requirement was removed, there would be no discussion, and the
administration would simply be required to provide the
information regardless of whether the legislature felt they
needed it.
TAPE 02-57, SIDE B
Number 2373
REPRESENTATIVE BERKOWITZ pointed out that since the governor
doesn't submit the budget until around December 15 and the
legislature doesn't convene until approximately mid-January,
even if a concurrent resolution moves through the process in an
expeditious manner, time could become an issue because the
normal effective date of a concurrent resolution is 90 days
after adoption. He also pointed out that a concurrent
resolution with an immediate effective date requires a two-
thirds vote, which, conceivably, could enable a minority party
to block the concurrent resolution. He acknowledged that his
concerns about the concurrent resolution requirement differ
depending on which parties might be in control of the different
branches of government. He asked why SJR 38 is even being
considered, given that there are "these practical problems."
REPRESENTATIVE JAMES said that she would like to see the
administration prepare a priority list to begin with, and opined
that SJR 38 would ensure that this happens.
REPRESENTATIVE BERKOWITZ pointed out, however, that the language
in SJR 38 does not mandate that this information be provided to
begin with, instead a concurrent resolution is required first.
REPRESENTATIVE KOOKESH indicated that he might be able to
support SJR 38 if it would ensure that once the governor puts an
item high up on his/her priority list, the legislature wouldn't
be able to strip those funds away.
REPRESENTATIVE BERKOWITZ mentioned that he has not yet heard any
compelling arguments that would justify amending the [Alaska
State] Constitution as proposed by SJR 38. He questioned how
those who assert "defend, don't amend" rhetoric with regard to
subsistence can assert just the opposite with regard to SJR 38.
CHAIR ROKEBERG announced that SJR 38 would be held over in order
to allow Ms. Hall an opportunity to further address
Representative Kookesh's concern regarding the concurrent
resolution requirement.
ADJOURNMENT
Number 2120
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:45 p.m.
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