03/24/2004 08:03 AM House STA
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= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 24, 2004
8:03 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 31
Proposing amendments to the Constitution of the State of Alaska
relating to the Alaska permanent fund and to payments to certain
state residents from the Alaska permanent fund; and providing
for an effective date for the amendments.
- MOVED CSHJR 31(STA) OUT OF COMMITTEE
HOUSE BILL NO. 132
"An Act relating to the duties of the attorney general;
requiring the attorney general to participate in all actions
affecting the management and jurisdiction of the natural
resources of the state; amending Rule 24(c), Alaska Rules of
Civil Procedure; and amending Rule 514, Alaska Rules of
Appellate Procedure."
- HEARD AND HELD
HOUSE BILL NO. 496
"An Act creating the Youth Vote Ambassador Program and relating
to that program; authorizing the members of the program to be
appointed to serve on election boards; relating to
qualifications for appointment to election boards; and providing
for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HJR 31
SHORT TITLE: CONST AM: PERMANENT FUND
SPONSOR(S): REPRESENTATIVE(S) HOLM
01/02/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) W&M, STA, JUD, FIN
01/23/04 (H) W&M AT 8:00 AM HOUSE FINANCE 519
01/23/04 (H) Heard & Held
01/23/04 (H) MINUTE(W&M)
02/04/04 (H) W&M AT 8:00 AM HOUSE FINANCE 519
02/04/04 (H) Heard & Held
02/04/04 (H) MINUTE(W&M)
02/18/04 (H) W&M AT 7:00 AM HOUSE FINANCE 519
02/18/04 (H) Moved CSHJR 31(W&M) Out of Committee
02/18/04 (H) MINUTE(W&M)
02/19/04 (H) W&M RPT CS(W&M) NT 6NR
02/19/04 (H) NR: WEYHRAUCH, SAMUELS, WILSON, OGG,
02/19/04 (H) MOSES, HAWKER
03/04/04 (H) STA AT 8:00 AM CAPITOL 102
03/04/04 (H) Heard & Held
03/04/04 (H) MINUTE(STA)
03/09/04 (H) STA AT 8:00 AM CAPITOL 102
03/09/04 (H) Heard & Held
03/09/04 (H) MINUTE(STA)
03/19/04 (H) STA AT 8:00 AM CAPITOL 102
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(STA)
03/24/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 132
SHORT TITLE: AG INTERVENE IN NATURAL RESOURCES ACTIONS
SPONSOR(S): REPRESENTATIVE(S) WEYHRAUCH
02/26/03 (H) READ THE FIRST TIME - REFERRALS
02/26/03 (H) STA, RES, JUD
03/13/03 (H) STA AT 8:00 AM CAPITOL 102
03/13/03 (H) Scheduled But Not Heard
03/24/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 496
SHORT TITLE: YOUTH VOTE AMBASSADOR PROG/ELECTION BDS
SPONSOR(S): REPRESENTATIVE(S) DAHLSTROM
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) STA
03/24/04 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
SUSAN TAYLOR, Director
Administrative Services Division
Department of Revenue
Juneau, Alaska
POSITION STATEMENT: Addressed the fiscal note with the
component labeled, "Commissioner's Office" [affecting the
Department of Revenue], during the hearing on HJR 31.
LANCE NELSON, Senior Assistant Attorney General
Natural Resources Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of the department and
answered questions during the hearing on HB 132.
DAVID W. MARQUEZ, Chief Assistant Attorney General
Legislation & Regulations Section
Office of the Attorney General
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Testified and answered questions on behalf
of the department during the hearing on HB 132.
KELLY HUBER, Staff
to Representative Nancy Dahlstrom
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 496 on behalf of
Representative Dahlstrom, sponsor.
LEONARD JONES
Elections Special Assistant
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Answered questions on behalf of the
division, during the hearing on HB 496.
ACTION NARRATIVE
TAPE 04-45, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 8:03 a.m. Representatives Holm,
Seaton, Coghill, Lynn, and Weyhrauch were present at the call to
order. Representatives Berkowitz and Gruenberg arrived as the
meeting was in progress.
HJR 31-CONST AM: PERMANENT FUND
Number 0048
CHAIR WEYHRAUCH announced that the first order of business was
HOUSE JOINT RESOLUTION NO. 31, Proposing amendments to the
Constitution of the State of Alaska relating to the Alaska
permanent fund and to payments to certain state residents from
the Alaska permanent fund; and providing for an effective date
for the amendments.
Number 0067
SUSAN TAYLOR, Director, Administrative Services Division,
Department of Revenue, directed the committee's attention to the
fiscal note with the component labeled, "Commissioner's Office"
[affecting the Department of Revenue]. She reminded the
committee that testimony had been given at the previous hearing
on HJR 31 [on March 19, 2004], stating that the Permanent Fund
Dividend Division would be phased out, but there would be
continuing work that would be picked up by the Office of the
Commissioner [in the Department of Revenue]. She listed that
continuing work as: formal appeals and court appeals of denied
decisions; collections of dividends fraudulently received or
paid in error; continuing work regarding the 18-year-old filers;
and fraud investigation. She stated that because the stakes
would be so high, it would be expected that fraud would possibly
increase; therefore, a fraud investigator would [work] for three
years. Because of the increase in the formal hearings, she
said, another hearing examiner would be hired, as well as two
legal office assistants. The other position that would be
maintained for quite awhile would be an Administrative Clerk
III, which would deal with the 18-year-old filers and work with
anyone on repayment plans.
Number 0250
CHAIR WEYHRAUCH announced that public testimony was closed. He
offered his understanding that [CSHJR 31(W&M)] was before the
committee.
Number 0303
REPRESENTATIVE HOLM moved to adopt Amendment 1, which read as
follows [original punctuation provided]:
Pg. 2, line 12, after the word "dividend." Insert:
Payments under this subsection shall be distributed by
April 1, 2005.
This amendment is a practical fix to the problem of
moving billions of dollars out of the market and other
investments of the fund without negative effects to
the fund value or the markets. The Fund managers have
said that this date will be sufficient.
CHAIR WEYHRAUCH objected for discussion purposes.
Number 0375
REPRESENTATIVE LYNN suggested that making the payout over two
years, instead of one, might be an advantage, because people
wouldn't have such a large tax [amount].
REPRESENTATIVE HOLM responded that the tax implications are
considerably better for a lump sum than they actually are in
small amounts. He illustrated that a tax of 23 percent on
$20,000 would leave $15,400. He said, "That amount invested
identically to the permanent fund is projected to return 8
percent, and if it did, it would create $1,232 per year of
income on that amount, and you still would have the $15,400 of
capital left in your own account. And so, I think it's a moot
point as to whether or not you break it apart in little pieces
...." Furthermore, he observed that $1,100 per year at a
conservative 2-percent inflation would result in a net loss of
$3,233, if taxes don't go up and a majority of 15-percent tax
brackets stay the same. He added, "It will also be a net loss
of $2,354." He concluded, "So, your net money, after 18 years,
is still only worth $14,412, which is an interesting anomaly."
Number 0500
CHAIR WEYHRAUCH removed his objection. He asked if there was
further objection to Amendment 1. There being none, Amendment 1
was adopted.
Number 0518
REPRESENTATIVE HOLM moved to adopt Amendment 2, which read as
follows:
Page 2, line 12, following "dividend":
Insert ", unless a written rejection of the payment is
provided to the State"
CHAIR WEYHRAUCH objected for discussion purposes.
REPRESENTATIVE HOLM explained that Amendment 2 responds to some
of the discussion that took place during the [March 19, 2004
meeting on HJR 31], regarding those folks who might lose their
hold harmless provisions. He said, "We put this forth to offer
to those that didn't want to lose their ability to get welfare
payments, the ability to (indisc. - coughing) of the $20,000, if
they so desire. So, it's just choice."
Number 0538
CHAIR WEYHRAUCH noted that since Amendment 1 was adopted, a
technical amendment to Amendment 2 was necessary to replace
"dividend" with "2005".
REPRESENTATIVE HOLM said he would accept that. [The technical
amendment to Amendment 2 was treated as adopted.]
Number 0571
REPRESENTATIVE SEATON said he knows that "in some provision the
State of Alaska has the ability to apply for dividends, even if
people don't want them." He asked, "The effect of this
provision, does it allow a participant to not receive it, and
... also ... prevent the State of Alaska from receiving that for
child support enforcement?"
REPRESENTATIVE HOLM responded that he would doubt that, because
"it would be no different than if someone was incarcerated and
chose not to do it."
REPRESENTATIVE SEATON clarified that he wants to ensure that
[Amendment 2, as amended] would not be putting in a new
statutory provision that would allow someone to reject the
payment "and that has some impact on that."
REPRESENTATIVE HOLM stated for the record that he agrees with
Representative Seaton.
Number 0657
CHAIR WEYHRAUCH removed his objection. He asked if there was
further objection to Amendment 2 [as amended]. There being
none, Amendment 2 [as amended] was adopted.
Number 0688
REPRESENTATIVE HOLM moved to report HJR 31, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes.
Number 0720
CHAIR WEYHRAUCH objected for discussion purposes.
Number 0728
REPRESENTATIVE SEATON stated that he appreciates the resolution
as a means to look at the state fiscal plan; however, he said it
seems that it would be transferring from future generations to
the current participants what was envisioned to be an ongoing
distribution of permanent funds through dividends. He said he
would not support the resolution.
Number 0760
REPRESENTATIVE BERKOWITZ stated that he likes the title, but
does not like the concept of hashing out the dividend. He said
it seems like a surrender strategy; surrendering the
responsibility to keep the permanent fund permanent as well as
the idea that a solution to the fiscal gap can be achieved
without going to excessive means.
REPRESENTATIVE BERKOWITZ, regarding the reason that he likes the
title, observed that [legislators] spend a lot of time talking
about the fiscal gap and outflow of the permanent fund,
regarding whether there will be percent of market value (POMV)
or a dedicated amount to dividends, for example. With the
existing title, he said, "We can start talking a little bit more
about what's coming in." He mentioned the "Cremo plan" [after
Roger Cremo]. He announced that he will not object to moving
HJR 31 out of committee, because he thinks it's important to
"carry the conversation further into the building than we are
right now," but he will be voting "do not pass." He stated his
intention to propose amendments based upon the Cremo plan.
Representative Berkowitz concluded, "I think we can do a better
job about filling Alaska's coffers into the future by
structurally changing the fiscal system than [by] just simply
cashing out today."
Number 0853
REPRESENTATIVE LYNN stated that he thinks this resolution is a
good example of thinking outside the box. He said that
obviously a payout of this type would benefit anyone over 60,
because "one would have to gamble on living until you're 80
years old" to receive that amount if it were paid over the next
20 years. He said others have expressed concern to him that if
people are paid $20,000 all at once they might blow the money.
He said he thinks it isn't anybody's business what other people
do with their own money. He indicated that such a payout would
be an economic boon to Alaska. He said he thinks [HJR 31] is
worthy of debate, and he stated his intent to vote it out of
committee, with "no recommendation," because he wants to see the
resolution debated further along with other alternatives.
Number 0968
CHAIR WEYHRAUCH characterized the permanent fund as a
conceptualization of a shining city on a hill. He spoke of vast
oil wealth put into a permanent fund and of giving an annual
payout to people so they would ensure that politicians would
stay honest with the state's money. He recollected that in
1982, when the "permanent fund payout" was being debated, the
state hired high-priced experts from around the world to look at
the influx of vast amounts of capital into countries like
Nigeria, where money came in and was simply squandered. He
related that those experts said [the state] would be better off
making statues out of gold that could be melted down and used
later, rather than "building other kinds of monuments that
simply do the public no good." He said that as oil prices
declined, the tenor of debate has become quite uncivil and has
frozen the ability of the public and legislators to look at a
long-term fiscal solution.
CHAIR WEYHRAUCH said it will be with some resignation that he
will support moving [HJR 31] out of committee, because it is an
acknowledgement that "maybe, ... instead of a permanent fund to
guide our state into the future, we've got a $28-billion
millstone around our collective necks; that we've frozen our
ability to come up with long-term reasoned solutions to problems
in the state." He observed that the government is a different
entity than the private sector and the individual, and
government can't and should not operate the same as the private
sector. He said that rather seeing [HJR 31] as an abrogation of
[the legislature's] responsibility, he sees a "payout of a large
sum now." He said he thinks Representative Holm has made the
case that this is a way to capitalize individual initiative and
dreams and perhaps put wheels under people who would have left
the state anyway, and "to finance that aspect of this payout."
He said he certainly sees [HJR 31] would be keeping a
significant amount of money available for the state government
to operate itself in the future. He said, "And to that respect,
we do honor our future generations of Alaska that rely on state
government, and the present generations that may be able to
build certain needs of future generations through private sector
initiative." He said he wants to follow Representative
Berkowitz's suggestion regarding the Cremo plan and structural
changes to deal with finances, and he agrees with both
Representatives Lynn and Berkowitz that this debate should move
forward. He stated his intention to vote "do pass."
Number 1174
REPRESENTATIVE HOLM thanked his fellow committee members for
their deliberation on the issue. He agreed with Representative
Berkowitz that there are structural problems regarding wanting
to have a perfect government, in the sense that the government
and the people respond appropriately regarding what is demanded,
received, and paid for. He clarified that there is a disconnect
in Alaska between "those of us who ask for services from the
government and those of us who pay for services for the
government." He said he thinks [HJR 31] would settle part of
that problem by putting into perspective that there is going to
be only so much money available from the permanent fund that is
left for government to utilize. The resolution would not take
away the need for the legislature to be careful regarding how
the state's assets are spent.
REPRESENTATIVE HOLM stated his belief that it's important that
the people of Alaska understand that [$28 billion] of the
state's assets are in the New York Stock Exchange, and because
they're there, they do absolutely nothing to create the wealth
in Alaska. He noted that $700 million dollars coming back out
of [$28 billion] is a small amount. Taking $10 billion to give
to the people of Alaska, he said, is putting that capital into
the people of Alaska's pockets. He asked the committee to
consider what effect it would have on a person to have his/her
mortgage cut from 30 years to 15 years, for example. He offered
more examples of how [the $20,00 payout] could benefit Alaskans.
He said, "This is not a perfect scenario, it is just an idea.
But we could retain over half of it and still have enough
earnings to provide for the governmental needs of Alaska,
without fighting the process that we're doing today." He
remarked that under any other kind of scenario, the problem
would still have to be solved. He opined that [HJR 31] is a
structural fix that will solve the dilemma of Alaska [not]
having enough money. He asked the committee to remember, "When
you have [$16 billion] left ..., 8 percent of that amount of
money is enough money to pay for all of the needs of the State
of Alaska's government." He indicated that there would still be
money to put back into the CBR.
Number 1393
CHAIR WEYHRAUCH removed his objection.
Number 1397
REPRESENTATIVE COGHILL objected.
Number 1400
A roll call vote was taken. Representatives Berkowitz, Holm,
Lynn, and Weyhrauch voted in favor of reporting HJR 31, as
amended, with individual recommendations and the attached fiscal
notes, out of committee. Representatives Gruenberg, Seaton, and
Coghill voted against it. Therefore, CSHJR 31(STA) was reported
out of the House State Affairs Standing Committee by a vote of
4-3.
HB 132-AG INTERVENE IN NATURAL RESOURCES ACTIONS
Number 1463
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 132, "An Act relating to the duties of the
attorney general; requiring the attorney general to participate
in all actions affecting the management and jurisdiction of the
natural resources of the state; amending Rule 24(c), Alaska
Rules of Civil Procedure; and amending Rule 514, Alaska Rules of
Appellate Procedure."
Number 1473
REPRESENTATIVE SEATON moved to adopt HB 132.
Number 1490
CHAIR WEYHRAUCH explained that HB 132 would require the attorney
general to participate as a party in lawsuits that affect the
management and jurisdiction of the natural resources of the
state. He noted that that language appears [as an amendment to
AS 44.23.020(b)], on page 2, [lines 18-25], paragraph (10). He
explained that this proposed legislation came about because of
concern that currently the State of Alaska, through the
executive branch, and specifically the attorney general, is not
involving itself in cases affecting fisheries, jurisdiction, or
management of natural resources.
CHAIR WEYHRAUCH offered a timely example of the state's
inability to involve itself in the wilderness waters issues. He
noted that the state passed a resolution asking the [U.S.]
Department of the Interior to appeal a case that affected
Alaska's fisheries. Soon after that resolution was adopted, the
attorney general did become involved. Chair Weyhrauch said, "It
did take a legislative goosing to get the state involved in
that." He said he thinks the State of Alaska has a fundamental
interest in joining these types of lawsuits where the state's
management and jurisdiction of natural resources is put at risk.
CHAIR WEYHRAUCH noted that the second part of the aforementioned
language would allow the attorney general to enter into
agreements with other governments or sovereigns if the agreement
benefits [the management of a natural resource of the state].
CHAIR WEYHRAUCH revealed that he had been advised that the
Office of the Attorney General opposes [HB 132], and he said
he's had concerns voiced to him that [HB 132] would infringe
upon the prerogatives of the executive branch by the legislative
branch. He pointed out that the statute already dictates what
the attorney general "is going to do." He read some examples.
He stated that what really drove this proposed legislation
initially was the Katie Johns v. United States case.
Number 1648
LANCE NELSON, Senior Assistant Attorney General, Natural
Resources Section, Civil Division (Anchorage), Department of
Law, told the committee that he has held his position in the
department for about 19 years. He read his testimony as
follows:
House Bill No. 132 requires the attorney general to
participate as a party in a judicial proceeding that
affects the management and jurisdiction of the natural
resources of the state, and to ensure by that
participation that the management and jurisdiction of
the natural resources are not diminished or ceded to
another government or sovereign. The bill ... also
amends the rules of Civil Procedure and the Rules of
Appellate Procedure to require the court to notify the
attorney general when a case arises that may fall
within that category.
We're concerned that it will harm Alaska's interest to
take away the attorney general's discretion to decide
whether to participate as a party in particular
litigation. We acknowledge that the bill is clearly
intended to protect the state's jurisdiction, but it
may hinder the attorney general's ability to preserve
state authority over natural resources, because it is
very broad and it applies indiscriminately. It takes
from the attorney general the ability to [ensure] that
important issues are presented to a court in the
manner most advantageous to the state. While the
attorney general may well determine that intervention
in an existing case is the best way to protect state
interests, under HB 132, he cannot consider other
options. With no ability to make strategic decisions,
the attorney general may be forced to litigate an
important issue under less than ideal circumstances,
with negative precedential consequences.
For example, cases that affect the management and
jurisdiction of natural resources frequently raise
state sovereignty issues. Strategically, the state is
ill advised to litigate these issues before the Court
of Appeals for the Ninth Circuit, because, in Alaska's
experience, this court seems to apply a presumption
against state sovereignty. In a reactive mode,
however, forced to intervene in a case brought by
others, the state may have no choice. In a proactive
mode, the state can raise the issue itself by filing
suit in a court more likely to give serious
consideration to Alaska's interests.
Number 1750
Other strategic decisions are also important to the
state's chance of success in litigation. Often cases
will turn on the underlying facts, and good legal
strategy dictates that an important issue be based on
a factual situation that tends to highlight the
justice of the state's position. Facts that invoke
sympathy for the state's opponent, on the other hand,
will harm the state's chance of success, even if the
state is correct on the law. Under HB 132, the state
will be forced to litigate an issue regardless of
whether the underlying facts support the wisdom of the
state's position. And once the state litigates a
legal issue, it generally will be bound to the outcome
in future cases involving that issue.
Timing is also a consideration in litigating state
sovereignty issues. Some say that the United States
Supreme Court is gradually increasing its recognition
of the inherent authority that states have under the
United States Constitution. It's a gradual increase,
however; the Supreme Court does not completely reverse
years of case law at once. The state has been careful
in all cases it brings, trying to gauge how far it can
push certain issues, and how best to raise them. If
the state tries to make huge gains in a single case,
it may lose on everything. Yet the state may be
forced into that position if the attorney general
cannot choose the litigation in which he participates.
The bill also raises concerns about the best use of
Department of Law resources. The department often
declines to intervene in private litigation because,
although the state's interest in natural resources
jurisdiction is arguably involved, the financial
resources required to participate don't justify the
potential benefit to the public. For example, private
landowners or leaseholders sometimes bring trespass
actions against guides or fishermen for fishing on
their property. The fishermen answer that they were
fishing below ordinary high water on a navigable
waterway, and therefore they were on state land, not
private land. The state may have an interest, because
the outcome may depend on whether the waterway is
navigable, or on precisely where ordinary high water
ends and private upland begins. The state generally
declines to participate in this type of case, however.
While the private defendants want the state's help in
preparing their defense, the cost to the state can be
enormous. Determining navigability or the limits of
ordinary high water requires historians, hydrologists,
and other experts, and lots of attorney time. The
cases rarely raise a purely legal issue; generally the
cases are the culmination of long-running disputes
that turn on the facts, that are personal and raise
messy credibility issues. The overall payoff for
state participation can be insignificant. For
example, at best a case might establish that at one
particular place, the public has a right to stand and
fish, provided they don't wander above ordinary high
water onto the plaintiff's property. If the state
does not participate, it is not bound by the decision
and can litigate the issue in the future.
Number 1869
When a case raises this type of management or
jurisdictional issue, the attorney general needs the
discretion to decline participation. The attorney
general has to be able to decide how to use scarce
litigation resources to maximize the return to
Alaska's citizens. And we do have scarce resources.
The Natural Resources Section that I serve in is about
one half the size it was in the early '90s because of
budget cuts over the years. We are not sufficiently
staffed to handle this level of mandatory litigation
burden. We believe we are doing a good job of
protecting the state's interest in intervening in
lawsuits when appropriate. We have filed in a number
of timber sale cases, the "Bristol Bay antitrust"
lawsuit, the "Tustumena Lake" case, and the ["National
Petroleum Reserve-Alaska" (NPR-A)] litigation. We are
taking an active role in many important natural
resources cases.
In short, the legislative branch may not agree with
every litigation decision the attorney general makes,
but it shouldn't try to take away his ability to make
them. The attorney general needs the discretion to
determine the best litigation strategy to advance
important state sovereignty issues and to decline to
participate in cases where the cost is not justified
by the potential benefit. HB 132 makes an all-
encompassing decision that the state must always
participate in litigation in a broad category of
cases, but we do not see, at this point looking into
the future, that this will turn out to be a good
decision.
Number 1939
CHAIR WEYHRAUCH asked Mr. Nelson how many cases per year involve
an issue relating to diminishment of the state's ability to
manage its resource to another government or sovereign.
MR. NELSON answered he doesn't know. He said, "We have some
concerns about what that would show if we started actively
looking, and I think the bill would put on us, basically, an
affirmative duty to start doing that."
Number 1980
REPRESENTATIVE BERKOWITZ revealed that when he worked in the
Department of Law, Mr. Nelson was one of the people who oversaw
some of his work. He stated, "We're really lucky we have people
like him working for us. I think it's one of the reasons why
the legislature's been able to cut the budget for the Department
of Law for so long, because we have a lot of really fine people
working those sections." He reminded the committee that there
are half the number of people there that were there in the early
'90s and the issues are as great or even greater than they were
at that point.
Number 2014
MR. NELSON, in response to a question from Chair Weyhrauch,
clarified that by "proactive mode" he meant that [HB 132] would
put an affirmative duty on "us" to go out and search out every
single case. Currently, most of the important cases come to the
fore and the option of intervention is discussed and evaluated.
However, he stated that there may be a lot of other cases out
there that don't have the notoriety of the cases that have been
looked at, and those less noted cases may have to be examined,
too. He said, "Once the public is aware of this duty, I'm sure
we're going to get all kinds of requests for private litigants
to come in and get the state on their side."
CHAIR WEYHRAUCH noted that the last section of the bill would
put permanent duty on parties to notify the state when the
management or jurisdiction of a natural resource of the state
may be affected. He suggested that would seem to take it away
from the state duty to "run around and find these cases" and
"put it on the party litigating that they must notify the
state."
MR. NELSON responded that that may be true, but the end result
would be that there would be more cases to review and it would
certainly take a lot of time.
CHAIR WEYHRAUCH asked Mr. Nelson if he could think of any case
in which it's not the interest of the State of Alaska to involve
itself when that case involves the diminishment or [cession] of
the state's management and jurisdiction to another sovereign.
MR. NELSON answered yes. He explained as follows:
For example, if somebody challenges a federal
subsistence regulation because they think the federal
government is overreaching in its authority, it may
well be that, because of the facts of the case or
maybe someone's being deprived of an opportunity
because of the facts of the case, "we" would prefer to
challenge a selective challenge on regulations where
the facts of the situation [point] out the justice of
the state's case, as opposed to making the state look
like we're anti-subsistence. You're probably aware of
the decision from the Ninth Circuit that have listed
things we do as one more example of the state's
denigration of the subsistence rights of Alaskans.
And we would want to be able to mount a challenge on
our own, and not be forced to become involved where we
couldn't really steer the proceedings and the
litigation and limit the issues to the ones that we
thought had some chance of success, and paint the
state's legal positions in the best light. And that's
maybe not the best example, but there are a lot of
cases out there where people are arguing about the
federal government's ability to do things, where the
litigation could go on and on forever, because ...
even if we intervene, we would not be able to control
the scope of the litigation at that. I think it would
be not to our advantage where law would be made, and
because we're a party, we'd be bound by it to be
involved in that kind of litigation.
Number 2164
CHAIR WEYHRAUCH asked if the Department of Law would be opposed
to the legislature's requesting through a resolution, for
example, that the Office of the Attorney General become involved
in a case it judges as important.
MR. NELSON replied that he cannot speak for the department on
that; however, he expressed his belief that, as has happened in
the past, he doesn't think that the attorney general would
object to the legislature expressing its policy views in that
manner.
Number 2219
REPRESENTATIVE GRUENBERG turned attention to Section 3 of the
bill. He asked Mr. Nelson if he believes that there may be some
merit in requiring the notification of the Department of Law in
certain kinds of natural resource cases or any other kinds of
cases. He explained the reason for his question is because he
thinks that the requirement in Rule 24 that the attorney general
be notified when the constitutionality of a law is called into
question is an important one. He suggested that there may be
some types of natural resource cases that the attorney general
ought to be notified about. He said he wonders whether Rule
24(c) and the equivalent appellate rule ought to be expanded in
some way to require the notification of the state in "certain
types of other cases." He pointed to the language on page [3],
beginning on lines 3 and 12, regarding the constitutionality of
state statute being drawn into question. He noted that the
phrase "affecting the public interest" appears in the first
reference beginning on line 3, but not in the second reference
having to do with the equivalent appellate rule. He questioned
whether that appellate rule should be amended to include the
same phrase.
REPRESENTATIVE GRUENBERG questioned "whether that ought to be
expanded to include regulations affecting the public interest."
He also noted, "If it's a regulation, it's not just a question
of the constitutionality, but the legality of a regulation
affecting the public interest."
Number 2345
DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation
& Regulations Section, Office of the Attorney General,
Department of Law, echoed Mr. Nelson's previous remark that it
could take quite a bit of effort to scan all the court records -
which may be in several jurisdictions - to find out what cases
might be affecting natural resources, regarding
constitutionality and diminishment of sovereignty, for example.
He said he thinks there may be merit in receiving notices of
cases that might "affect us." He added that he is sure that the
legislature might also like to know about "those kind of cases
that might be out there."
TAPE 04-45, SIDE B
Number 2378
MR. MARQUEZ revealed that he has only been with the department a
little over a year and he doesn't know what resources would be
available to "scan" those notices.
Number 2355
REPRESENTATIVE GRUENBERG indicated that there is an equivalent
federal provision that requires the U.S. attorney general to be
notified when the constitutionality of a federal statute is
called into question. He stated that he doesn't know if there
is an equivalent provision in the federal rules of appellate
procedure. He observed there is nothing in Rule 24(c) that
requires, in a state preceding, that the U.S. attorney general
must be notified if the constitutionality of a federal statute
is called into question, because the federal rules don't apply
in state court. He said he thinks that if the constitutionality
of a federal statute is called into question, a U.S. attorney
general should be notified, because one issue that would
immediately become of interest to the U.S. attorney general's
office would be whether that case ought to be removed from state
court to federal court. He stated, "Mr. Chair, I have some of
the same problems that the attorneys have already expressed on
this bill, and I see this as an important potential vehicle for
providing some really good amendments to ... Civil Rule 24(c)
and possibly Appellate Rule 514, and I'm wondering if the chair
would be willing to have this bill looked at from that point of
view."
Number 2290
CHAIR WEYHRAUCH responded that he has a number of amendments and
the bill will be brought back before the committee.
Number 2274
REPRESENTATIVE HOLM offered his sense that part of the solution
being focused on for development is based upon the fact that
[Alaska] doesn't have an elected attorney general. He clarified
that by that he means that there is no direct relationship
between who the attorney general is and what is in the best
interest of the people of Alaska, necessarily. He cited
[Glacier Bay National Park and Preserve] as an example of when
the federal government comes in and takes a piece of Alaska and
no one fights them. He said there have been many cases where
the state has gotten involved in the best interest of the people
of Alaska. He indicated that he somewhat thinks it is
appropriate to exercise some legislative control over the
attorney general's office in "this way." He stated that "all of
us here" are concerned with the state's rights for its
sovereignty and want to demand that the attorney general take
the appropriate action. He indicated that [HB 132] is a good
starting point.
Number 2208
CHAIR WEYHRAUCH remarked that it seems like a bill calling for
an elected attorney general is introduced almost every session.
He suggested that an elected attorney general might consider
whether pursuing an issue was in his/her best political
interest. He indicated that the legislature would still have to
impose on [the attorney general] an obligation to do what's best
for the [state], whether that attorney general was elected or
not.
Number 2175
REPRESENTATIVE GRUENBERG questioned whether, constitutionally,
the legislature can order the attorney general to participate in
a case or to take a certain position. He said he is aware of at
least two cases that say that "the judiciary" cannot do so. He
gave some examples of cases that deal with violations of
separation of powers. He said is not aware of any case
determining whether the attorney general can be ordered by the
legislature to participate or prosecute any case or a given type
of case. He told Mr. Marquez that he would like to see some
legal research on that.
Number 2070
MR. NELSON clarified that "our" objections are based on Sections
1 and 2, rather than Sections 3 and 4. More specifically, he
said he doesn't think "we" have any serious problems with the
notice requirements that are in Sections 3 and 4. He continued
as follows:
I think the bill does raise serious separation of
powers issues, because the Alaska [State] Constitution
does give the governor the authority right now to
basically steer the legal participation by the state
and the courts. And the bill raised the question of,
"Does this overstep policy-making authority of the
legislature to ... set policy for the state and go
beyond that and basically direct an executive function
in a more detailed way ... that would be inconsistent
with the separation of powers doctrine?" ... We
haven't chosen to ... highlight those issue as the
main concern for the bill at this point in time, but
we do recognize those as serious issues.
CHAIR WEYHRAUCH said he thinks he pointed that out when he
introduced the bill.
Number 2000
REPRESENTATIVE SEATON, regarding Sections 3 and 4, said it seems
like, currently, under both those rules, notice is given by the
court to the attorney general of anything challenging the
constitutionality. Representative Seaton turned attention to
the added language on [page 3, lines 4-5], which read as
follows:
, or (2) the management or jurisdiction of the natural
resources of the state may be affected,
REPRESENTATIVE SEATON said it seems like every case that's taken
by a fisherman is talking about the management of a fisheries
resource. He said he wants to get a handle on whether the
requirement on lines 4 and 5 would mean that "you would have to
get notification of almost every fisheries case that goes
forward." He interjected that he is not as familiar with timber
cases, but he stated his concern that "this is broadening the
... noted provisions so much that it might be kind of plowed
when the constitutionality notifications are coming."
CHAIR WEYHRAUCH responded that it seems that if there is some
other entity rather than the State of Alaska managing or having
jurisdiction over the state's fisheries, the state better know
about that case. He asked Mr. Nelson to respond.
MR. NELSON reiterated that [the department] doesn't really have
a concern with Sections 3 and 4. He said:
I think that would place a burden on the court system
and parties, as opposed to the state. I think that
... there's a potential, I guess; any time state law
or a state regulation is challenged or a narrow
interpretation of that is urged, then that might
implicate those sections and require some kind [of]
notice. And so, there probably would be a pretty big
grey area where the courts would probably err on the
side of ... wanting to comply with the requirements of
the rules and the parties too, and it may be broader
than you'd wish to see.
Number 1900
REPRESENTATIVE SEATON noted that the aforementioned lines 4 and
5 don't just relate to those cases in which there's another
sovereign or anybody asserting jurisdiction; it says that the
management of natural resources may be affected. He said it
seems like [in] every case there is a challenge of regulation
"or something there." He asked [Mr. Nelson] if he agreed with
his interpretation of the language on lines 4 and 5.
Number 1872
MR. NELSON responded that it is broad language and may have the
potential to result in notices of a lot more cases than what is
really intended by the bill.
CHAIR WEYHRAUCH said it seems to him that if that were an issue
then it could be resolved by inserting the word "state" in
between "the" and "management".
Number 1844
REPRESENTATIVE GRUENBERG responded that he doesn't think that
would [solve the issue], because "this is very, very broad," and
it will really require some careful drafting. He said he hopes
the department will consider the comments that have been uttered
today and "figure on a policy basis what we ought to do with
those two rules." He stated that he also sees some impact on
two other groups of people who are not represented at the
hearing: all the members of the bar, and the court system.
Number 1809
CHAIR WEYHRAUCH announced that [HB 132 was heard and held].
HB 496-YOUTH VOTE AMBASSADOR PROG/ELECTION BDS
Number 1801
CHAIR WEYHRAUCH announced that the last order of business was
HOUSE BILL NO. 496, "An Act creating the Youth Vote Ambassador
Program and relating to that program; authorizing the members of
the program to be appointed to serve on election boards;
relating to qualifications for appointment to election boards;
and providing for an effective date."
Number 1790
KELLY HUBER, Staff to Representative Nancy Dahlstrom, Alaska
State Legislature, presented HB 496 on behalf of Representative
Dahlstrom, sponsor. She said that, in an effort to bring young
people into the election process, HB 496 would allow high school
students 16 years and older to participate at the polls as part
of the election boards. The youth will be trained by the
election supervisor and be assigned to certain election
precincts as deemed necessary by the supervisor. Ms. Huber
noted that 74 percent of the United States already does this
type of program. She said it's a way to get young voters
interested - hopefully for life - in the process.
MS. HUBER noted that the bill would also amend the
qualifications for appointment to the precinct election board,
by removing the requirement that a person must live in the
precinct [in which he/she would be working]. She explained this
amendment was added because, many times, there are a lot of
interested youth from one precinct, while not so many in
another, and this would give the Division of Elections the
ability to move people as long as they are qualified in the
state.
Number 1731
REPRESENTATIVE GRUENBERG surmised that the reason for an
immediate effective date has to do with the upcoming August
election. He asked if that is Ms. Huber's thinking.
MS. HUBER replied it is. She added that the youth need to be
trained. The effective date makes it possible to let youth know
about the opportunity to participate and for them to go through
a training process and be available for the upcoming elections.
Number 1702
REPRESENTATIVE GRUENBERG stated that, as a general policy basis,
he has never favored legislative findings. He opined that they
usually don't add much to the law. He asked if there is a need
for legislative findings in the bill.
MS. HUBER responded no. She indicated that the Division of
Elections [included findings] as a way of explanation.
REPRESENTATIVE GRUENBERG responded, "We could do that in those
bills."
MS. HUBER concurred.
REPRESENTATIVE GRUENBERG said he thinks [HB 496] is a good bill.
Number 1646
MS. HUBER, in response to a question from Chair Weyhrauch,
clarified that, typically, a sixteen-year-old would be either a
sophomore or junior in high school.
Number 1630
REPRESENTATIVE SEATON asked Ms. Huber to explain the reason for
"taking out the precinct and going back to not involving the
people in the precinct as the election ... personnel."
MS. HUBER indicated that the bill would not do that. She
clarified that the bill would effect a change so that a person
would not have to live in the precinct in which he/she works as
an election poll worker. She reiterated that this would give
the Division of Elections the ability to redirect some qualified
personnel from one precinct with many workers, to one with few.
REPRESENTATIVE SEATON asked if part of the reason to have
workers from their own precinct was so that they are better able
to identify the voters as they sign in to vote.
MS. HUBER responded that she is sure that was one of the
original [reasons to do that]; however, [the Division of
Elections] is losing people in some areas and needs this tool in
order to have qualified workers in all the precincts. [In
regard to the question of better identification], she noted that
some form of identification is required. She said she doesn't
think that [the Division of Elections] would [transfer people]
unless it is necessary to do so. She indicated one reason for
the loss of [election workers] in some areas is due to
attrition.
Number 1531
REPRESENTATIVE SEATON pointed out that the proposed language
could result in everyone in Juneau being taken out to run
elections in Ketchikan, for example, because the change is to
remove the precinct requirement, leaving just the requirement
that [the election worker be qualified to work in] the state.
MS. HUBER responded that although that is how the bill reads,
she does not believe that the Division of Elections intends to
do that. She said she thinks the division just needs a little
bit more latitude to ensure that there are qualified poll
workers in all precinct areas. She noted that Leonard Jones is
available from the Division of Elections to answer questions.
She indicated that HB 496 is intended as a management tool.
Number 1469
REPRESENTATIVE COGHILL said his thinking is like that of
Representative Seaton's. He stated that one of the goals of the
election policy is "to try to keep it as close to the people as
possible." He mentioned "broadening it out to the state." He
said, "I think there's already some practice going on in this
arena, and we might ask the Division of Elections ... if they've
actually stepped over this line." He opined, "At the very
least, I think we should stay within a district, mainly because
of citizen re-participation in their own district." He noted
that Representative Carl Morgan's district is "the horseshoe
district that takes in the bulk of the land of Alaska." He
suggested that district might run into some problems. He
concluded that he would "err towards the side of keeping it [as]
close to the precinct as possible."
Number 1413
REPRESENTATIVE GRUENBERG turned to a handout [entitled "New
Millennium Best Practices Survey," included in the committee
packet], which he said shows how other states handle "the youth
vote ambassador kind of a concept." Referring to the title of
the bill, he said he is not sure that the term "youth vote
ambassador program" is the most accurate description. He asked
if that is a term that is used in other states.
Number 1374
LEONARD JONES, Elections Special Assistant, Division of
Elections, Office of the Lieutenant Governor, answering
questions on behalf of the division, told Representative
Gruenberg that there are a variety of terms used in various
states to name similar programs. He noted some other names that
have been considered by the division. The bottom line is to
involve the young people of the state of Alaska in the process
of voting and in learning the mechanics of the operation within
the election process.
Number 1295
REPRESENTATIVE GRUENBERG brought attention to page 2, line 6 of
the bill, which requires the youth to be a student age 16 or
older. He asked if 16 is the lowest common age chosen by other
states.
MR. JONES said 16 is the most common age.
REPRESENTATIVE GRUENBERG noted that in some states, there are
limits as to what the youth can do. He asked Mr. Jones what he
thinks the young people would do and how did the division arrive
at its conclusion, rather than perhaps setting a more
restrictive role.
Number 1235
MR. JONES said the election board, when set up in the precincts,
will be made up of "two possible youth ambassadors." They will
be working with other adults and under the supervision of an
election supervisor who will be "moving between these areas."
He indicated that [the youth] could be serving as runners and
helping with the setup, and they may - under supervision of
another qualified adult - get to check off names, based on the
identification provided by the voter.
REPRESENTATIVE GRUENBERG asked if there is language in the bill
that clarifies that.
MR. JONES turned to the new language on [page 2, beginning on
line 29], which read as follows:
An election supervisor may also appoint not more than
two members of the youth vote ambassador program
established in AS 15.10.108 to serve on a precinct
election board.
Number 1166
REPRESENTATIVE COGHILL suggested that to clarify that point,
perhaps it could be stated what the "combination of people"
would be on a precinct board. He asked if [the board] would
always be limited to a number, or is "maximized by number." He
asked what the rest of the committee's makeup would be if two
members of the committee were youth workers.
Number 1154
REPRESENTATIVE GRUENBERG pointed to [page 2], lines 17-18, which
read as follows:
AS.15.10.120. A program member who is appointed to
serve on an election board under this subsection
serves under the supervision of the chairperson for
that board.
REPRESENTATIVE GRUENBERG offered an example that there may be
three people, but the adult supervisor takes a bathroom break,
leaving the two youths alone. He asked what would prevent that
in the bill.
Number 1115
MS. HUBER said she thinks that part of the job of the supervisor
at the polling place is to make sure that doesn't happen. She
said the supervisors are trained through the Division of
Elections. She surmised that there's a trust that the division
would not leave two youth "manning" a polling place.
Number 1098
REPRESENTATIVE COGHILL concurred with Ms. Huber. He said, "But
it says, 'At least three', so we know that the makeup is going
to be at least five at this point." He explained that he just
wants to know whether the general makeup would be six or eight,
for example, and would the workers [give each other breaks].
Number 1080
MR. JONES indicated that it would depend. For example, he said
that there would be a smaller number of people working in rural
areas. He offered to get information to the committee that
would show what the division considers when it sets up the
"precinct election booklets."
Number 1064
CHAIR WEYHRAUCH noted that, currently, the language of the bill
makes compensation of the youth mandatory. He asked if it had
to be that way. He surmised that would create a fiscal impact.
He noted that [AS] 15.15.380 directs the director to pay each
election board member.
Number 1040
MS. HUBER turned to [subsection (c), on page 2], which read:
(c) An election supervisor may appoint a member
of the youth vote ambassador program to serve on a
precinct election board appointed under AS 15.19.120.
A program member who is appointed to serve on an
election board under this subsection serves under the
supervision of the chairperson for that board.
MS. HUBER also noted [subsection (e), on page 2], which read as
follows:
(e) A member of the program may provide unpaid
volunteer services related to education and outreach
on state elections as directed by, and under the
supervision of, the director of elections.
CHAIR WEYHRAUCH asked, "So is it to be volunteer or paid?"
MS. HUBER responded, "Good question."
CHAIR WEYHRAUCH told Ms. Huber that the committee likes the
bill, but has questions regarding it that may result in
amendments.
Number 0990
REPRESENTATIVE COGHILL noted that there is some regulatory
authority already regarding selecting people out of precincts,
which he said looks like "it goes contrary to statute that's
already in existence." He suggested it would be good to find
out if that's a practice that has already somehow been written
into some regulatory policy. He added, "I'd like to call that
in, if that's the case."
Number 0953
REPRESENTATIVE GRUENBERG asked if, by law, there is a minimum
number of people on an election board.
Number 0948
MR. JONES said he would have to review the regulations
specifically in order to answer that question.
REPRESENTATIVE COGHILL noted that Section 3 designates "at least
three qualified voters".
Number 0931
REPRESENTATIVE GRUENBERG turned to page 2, lines [26-31], which
read as follows:
*Sec.3. AS 15.10.120(a) is amended to read:
(a) An election supervisor shall appoint in each
precinct within the election supervisor's district an
election board composed of at least three qualified
voters registered to vote in this state [THAT
PRECINCT]. An election supervisor may also appoint
not more than two members of the youth vote ambassador
program established in AS 15.10.108 to serve on a
precinct election board.
REPRESENTATIVE GRUENBERG said he interprets that language to
mean that two of the three people could be youths.
Number 0890
MS. HUBER noted that the language within those lines states that
[the election supervisor] "may also appoint", and she emphasized
the word "also". She indicated her understanding of the
language is that [the two members of the youth vote ambassador
program would be] in addition to the three [workers over the age
of 18]. She suggested that that language could be clarified in
a committee substitute.
REPRESENTATIVE GRUENBERG indicated that the language should be
clarified to read, "in addition to the other three." He stated
his understanding that one of the purposes of the election board
people is to determine the qualifications of an individual
voter, if there is a challenge "right there." He opined it
would not be good public policy to allow youths to be able to
make up a majority of the board and maybe determine whether some
adult gets to vote or not.
MS. HUBER said she thinks the sponsor will [agree to] most of
the changes that the committee has discussed.
Number 0842
CHAIR WEYHRAUCH announced that HB 496 was heard and held.
ADJOURNMENT
Number 0813
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:26
a.m.
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