Legislature(1999 - 2000)
02/01/1999 01:04 PM House RES
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
February 1, 1999
1:04 p.m.
MEMBERS PRESENT
Representative Scott Ogan, Co-Chair
Representative Jerry Sanders, Co-Chair
Representative Beverly Masek, Vice Chair
Representative John Harris
Representative Carl Morgan
Representative Ramona Barnes
Representative Jim Whitaker
Representative Reggie Joule
Representative Mary Kapsner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 3
Proposing an amendment to the Constitution of the State of Alaska
relating to initiatives regarding natural resources belonging to
the state.
- HEARD AND HELD
(* First public hearing)
PREVIOUS ACTION
BILL: HJR 3
SHORT TITLE: CONST. AM: WILDLIFE INITIATIVES
SPONSOR(S): REPRESENTATIVES(S) BUNDE
Jrn-Date Jrn-Page Action
1/19/99 16 (H) PREFILE RELEASED 1/8/99
1/19/99 16 (H) READ THE FIRST TIME - REFERRAL(S)
1/19/99 16 (H) RESOURCES, JUDICIARY, FINANCE
1/27/99 (H) RES AT 1:00 PM CAPITOL 124
1/27/99 (H) HEARD AND HELD
2/01/99 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
TAMARA COOK, Director
Legislative Legal and Research Services
Legislative Affairs Agency
130 Seward, Suite 409
Juneau, Alaska 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Discussed distinctions between amendments and
revisions to the constitution relating to
HJR 3.
REPRESENTATIVE CON BUNDE
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
Telephone: (907) 465-4843
POSITION STATEMENT: Sponsor of HJR 3.
PATTI SWENSON, Legislative Assistant
to Representative Con Bunde
Alaska State Legislature
Capitol Building, Room 501
Juneau, Alaska 99801
Telephone: (907) 465-6824
POSITION STATEMENT: Answered questions relating to HJR 3.
JOEL BENNETT
15255 Point Louisa Road
Juneau, Alaska 99801
Telephone: (907) 789-1718
POSITION STATEMENT: Testified in opposition to HJR 3.
JOHNNY GRAMES
525 West Third
Anchorage, Alaska 99501
Telephone: (907) 274-6348
POSITION STATEMENT: Testified on HJR 3.
ACTION NARRATIVE
TAPE 99-3, SIDE A
Number 001
CO-CHAIR SCOTT OGAN called the House Resources Standing Committee
meeting to order at 1:04 p.m. Members present at the call to
order were Representatives Ogan, Sanders, Masek, Harris, Morgan
and Whitaker. Representatives Kapsner, Barnes and Joule arrived
at 1:07 p.m., 1:12 p.m. and 1:16 p.m., respectively.
HJR 3 - CONST. AM: WILDLIFE INITIATIVES
Number 029
CO-CHAIR OGAN again brought before the committee House Joint
Resolution No. 3, proposing an amendment to the Constitution of
the State of Alaska relating to initiatives regarding natural
resources belonging to the state. He asked Tamara Cook to brief
the committee on whether this could be interpreted by the supreme
court as a revision, rather than as an amendment.
Number 054
TAMARA COOK, Director, Legislative Legal and Research Services,
Legislative Affairs Agency, told members that last year before
the election a suit was brought involving three proposed
constitutional amendments that the legislature was seeking to
have placed on the general ballot. Of those three, the supreme
court ordered that one not appear on the ballot; that the second
one appear on the ballot as written; and that the third one
partially appear on the ballot, with the last sentence deleted.
MS. COOK said the basis for this decision was a distinction that
the supreme court found between the power of the legislature to
suggest an amendment to the constitution and the notion that a
revision must be accomplished in a constitutional convention.
The court issued its ruling in time for the election ballots to
be prepared. Also at the time it issued what it designated as a
preliminary opinion, and the court indicated that a full opinion
would be following; however, that has not come out yet. Ms. Cook
stated, "So, the obvious question that we're confronted with here
in the legislature is how to distinguish between an acceptable
constitutional amendment, which the legislature has the power to
propose, and a change that is so broad that it would be deemed by
the court to be a revision of the constitution and therefore
available only at a constitutional convention."
Number 087
MS. COOK told members the court basically said that changes that
are few, simple and independent can be considered amendments. In
addition, there are factors it would look at. First is whether
the proposal is simple to express and understand. Second is
whether it is complete within itself. Ms. Cook explained, "By
that, I think the court means, 'Is there an either actual or
implied change to other sections in the constitution that will
result from the proposal in front of the court?'" A third factor
is whether it relates to only one subject; Ms. Cook said it is
interesting that the court appears to have adopted a single-
subject test, which already applies to statutes but now seems to
apply on the constitutional amendment level. The last factor is
whether it substantially affects numerous sections of the
constitution.
MS. COOK said although the court looks at those factors, it was
very careful to say it would decide whether something is an
amendment or a revision on a case-by-case basis. She noted that
the court described a revision as being "a change that is
sweeping." Ms. Cook stated, "So, I suppose the court has left
itself open the possibility to determine that even a very simple
change could be so sweeping from a practical effect - or a change
in policy might be so significant - that perhaps a court would
find even a very simple constitutional change that met the four
guidelines as still being sweeping in scope because of its
effect. And that's basically all we know right now. We don't
have the final opinion. We don't have any other case law. It's
the first time it's come up in our jurisdiction in this state; it
has come up in some other states, but it's hard to know how much
of the reasoning in those other cases our court will accept or
rely on."
MS. COOK told members, "With respect to the proposal that you
have before you in this committee, it appears that this one meets
the four criteria. It ought to be acceptable as an amendment - a
proposed amendment - under the factors that the court
articulated. It leaves out that one little question about
whether changing the power of initiative, in itself, from a
policy point of view, is so sweeping a change that it would be a
revision. But from all that I know from this preliminary
opinion, the resolution that you're considering now would
probably survive as a potential proposed amendment."
Number 175
REPRESENTATIVE CON BUNDE, sponsor of HJR 3, noted that there had
been some reaction to the resolution suggesting it would be an
"anti-anti-development initiative." He pointed out that the
sword cuts both ways, however, so that if people in a particular
district wanted to present an initiative that allowed some
additional hunting of wolves or oil drilling, for example, it
would have to meet this criteria.
REPRESENTATIVE BUNDE referred to a handout titled, "Initiatives
Appearing on the Ballot in Alaska." He noted that the same-day
airborne hunting initiative in 1996 did not achieve a two-thirds'
majority either for or against it. Similarly, two-thirds of the
voters did not reject the recent wolf snaring issue.
Representative Bunde suggested that HJR 3 would increase public
participation because the bar is raised, and it would certainly
increase the amount of information disseminated, hopefully
raising it to a more factual level.
Number 237
CO-CHAIR OGAN asked Patti Swenson to provide a brief overview of
how different states deal with this type of wildlife initiative.
PATTI SWENSON, Legislative Assistant to Representative Con Bunde,
Alaska State Legislature, referred to the third-from-last page in
the handout. She told members that Utah seems to have the most
recently passed legislation relating to wildlife initiatives,
which passed by 56.1 percent of the vote. Utah's law is very
similar to Alaska's, and it is the one upon which Alaska's was
modeled.
CO-CHAIR OGAN asked whether Utah's law had been challenged in
court.
Number 280
REPRESENTATIVE BUNDE said that challenge has not, to his
knowledge, been initiated, although it is anticipated. He noted
that the attempt to limit access to the initiative process by
having more stringent requirements for the signature gatherers
was struck down by the U.S. Supreme Court as an infringement upon
the "right of political speech."
Number 320
JOEL BENNETT came forward to testify in opposition to HJR 3. He
specified that he was speaking on his own behalf, but he informed
members he had served on the Board of Game for 14 years and had
been co-chair of the successful initiative effort on Proposition
3 in 1996. Mr. Bennett indicated he believes that initiative was
the genesis for HJR 3, which he opposes. He referred to the
extensive discussion at the constitutional convention, then said,
"We've been a state now for a lot of years with this provision in
place, and I don't see why it's necessary to change it." He
reminded members that of the two wildlife initiatives since 1995,
one passed and one failed. He said the public is more than able
to take the facts, digest them, and thoroughly examine these
important matters.
MR. BENNETT agreed there could be some improvements in the
initiative process, saying there has been legitimate criticism
about how signatures are gathered, for example, as well as about
some of the fine-tuning of the process. He concluded by
cautioning that taking such a broad-based step as HJR 3 to
essentially restrict an important part of this state's democratic
process is a big mistake.
Number 385
CO-CHAIR OGAN, acknowledging Mr. Bennett's part in putting
together the same-day airborne hunting initiative, stated his
belief that people had thought they were voting on shooting
wolves from airplanes, which was not the case. He pointed out
the wording of the initiative was even misleading.
MR. BENNETT said that wasn't the intent, stating that there are
some built-in protections in the process, including an
explanation set in front of the voters that is a fair description
of what the initiative does. He stated, "I think in that case,
to us it was clear what that initiative did. It was a
contentious issue; it always has been for the state. So
naturally there'd be people who would construe it differently."
In addition to built-in protections, Mr. Bennett said the people
are smart enough to read these things and understand what they
mean, and that if there are drafting defects, so be it, it is
part of the process that the constitutional convention members
recognized as perhaps a trade-off for that check and balance. He
mentioned the gravity of changing something like a basic
constitutional provision.
Number 489
REPRESENTATIVE BARNES read from Article VIII, Section 2, General
Authority, which says the legislature shall provide for the
utilization, development and conservation of all natural
resources. She said it seems the management of Alaska's
resources is beginning to take place through the initiative
process. She stated her belief that the legislature has the sole
authority under the constitution for management of Alaska's fish,
wildlife, and other replenishable resources, but that the
legislature chooses to delegate some of that responsibility to
the Board of Fisheries and the Board of Game. Representative
Barnes asked Mr. Bennett whether, as a former Board of Game
member, it doesn't worry him that the authority could be
"initiated away," for example, causing potential biological
problems.
Number 468
MR. BENNETT responded to Representative Barnes that he
understands her point of view, but that the legislature delegates
to the Board of Game, which adopts regulations that the
legislature can repeal. An initiative can be passed, but it can
be amended by the legislature, and it can be repealed by the
legislature after two years. These are protections built into
that provision. Mr. Bennett said he just doesn't see the
initiative provision as being destructive to [Article] VIII,
which clearly enumerates that power, because the initiative
article also gives a separate ability of the people to make a
change; that can exist for a short period of time or be amended
by the legislature. Ultimately, the legislature still retains
the authority to affect anything passed by initiative, or any
regulation passed by the Board of Game.
Number 489
REPRESENTATIVE BARNES replied that prior to the A.L.I.V.E. court
decision, the legislature was allowed to overturn a regulation by
a simple resolution. Since then, she had never known the
legislature to pass legislation overturning a regulation,
although she suggested hundreds should have been overturned.
Number 510
MR. BENNETT expressed his belief that the two initiatives under
discussion did not involve allocation, especially the one he had
worked on, which dealt with a method, not an allocation. He
added that in that sense it is less like management than would be
a strict allocation of resources.
Number 538
JOHNNY GRAMES testified via teleconference from Anchorage, saying
he has been an environmentalist in Alaska since he was born here.
He told members that initiative, referendum and recall are safety
valves to representative democracy, as they are direct action by
the people. He reminded members that they had been elected by a
majority of the same voters that vote on these initiatives. Mr.
Grames indicated that when someone tries to get an appointment on
the Board of Game, this committee "trashes" that person if he or
she is an environmentalist, so that the Board of Game doesn't
reflect all of the citizens and voters of Alaska. He said that
is one cause of initiatives like the one that committee members
apparently find so offensive. He concluded by saying he believes
HJR 3 sets a very dangerous precedent.
Number 566
CO-CHAIR OGAN asked if anyone else wished to testify, then
requested that committee members bone up on the "revision versus
amendment" issue, noting that he would make material available to
any members who had not yet received it. He stated the belief
that if HJR 3 passes, it will be challenged, and he advised
members of his intention of moving the resolution from committee
eventually, after thoughtful consideration. [HJR 3 was held
over.]
ADJOURNMENT
Number 538
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 1:38 p.m.
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