Legislature(1995 - 1996)
03/21/1996 09:20 AM Senate FIN
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
March 21, 1996
9:20 a.m.
TAPES
SFC-96, #45, Sides 1 and 2
SFC-96, #46, Side 1 (000-346)
CALL TO ORDER
Senator Rick Halford, Co-chairman, convened the meeting at
approximately 9:20 a.m.
PRESENT
In addition to Co-chairman Halford, Senators Donley,
Phillips, Rieger, and Zharoff were present. Co-chairman
Frank arrived soon after the meeting began. Senator Sharp
did not attend.
ALSO ATTENDING: Representative Therriault; Robert E. Ruby,
Division Administrator, Alaska Division, Federal Highway
Administration, U.S. Department of Transportation; Jim
Bryson, Right-of-Way Officer, Alaska Division, Federal
Highway Administration, U.S. Department of Transportation;
Chris Christensen, Staff Counsel, Alaska Court System; Geron
Bruce, Legislative Liaison, Dept. of Fish and Game; Dwight
Perkins, Special Assistant, Dept. of Labor; Sam Kito, III,
Legislative Liaison/Special Assistant, Dept. of
Transportation and Public Facilities; Sara Hannan, Alaska
Environmental Lobby; Carol Carroll, Director, Administrative
and Support Services Division, Dept. of Military and
Veterans Affairs; Crystal Smith, Legal Administrator, Dept.
of Law; Nancy Weller, Medical Assistance Administrator,
Division of Medical Assistance, Dept. of Health and Social
Services; Brett Huber, aide to Senator Green; and aides to
committee members and other members of the legislature.
PARTICIPATING VIA TELECONFERENCE: Beth Kerttula, Assistant
Attorney General, Dept. of Law, Anchorage; Janice Adair,
Director, Division of Environmental Health, Dept. of
Environmental Conservation, Anchorage; Rick Barrier,
President, Alaska Campground Owners' Association, Anchorage;
Daniel Strouse, R/V Park Owner, Palmer; Red Starr, R/V Park
Owner, Palmer.
SUMMARY INFORMATION
SB 181 - PROHIBITED HIGHWAY ADVERTISING
Discussion was had with Robert Ruby; Jim Bryson;
Sam Kito, III; and Brett Huber. Teleconference
testimony was presented by Rick Barrier, Daniel
Strouse, and Red Starr. The bill was subsequently
held in committee for additional work by Co-
chairman Frank and the sponsor, Senator Green.
SB 199 - ENVIRONMENTAL & HEALTH/SAFETY AUDITS
Testimony was presented by Sara Hannan, Geron
Bruce, Dwight Perkins, and Sam Kito, III. Janice
Adair and Beth Kerttula responded, via
teleconference from Anchorage, to questions from
members. The bill was then held in committee for
additional work by Senator Phillips and the
sponsor, Senator Leman.
HJR 5 - LIMITING TERMS OF STATE LEGISLATORS
Representative Therriault noted differences
between CSHJR 5(Fin)am and SCS CSHJR 5(Jud).
Chris Christensen spoke in opposition to the
Senate Judiciary version. Following discussion
with members, Co-chairman Halford advised that the
resolution would be held in committee and that the
House version would be used by committee as the
starting point for further review.
SENATE BILL NO. 199
An Act relating to environmental audits and health and
safety audits to determine compliance with certain
laws, permits, and regulations; and amending Alaska
Rules of Appellate Procedure 202, 402, 602, 603, 610,
and 611.
Co-chairman Halford directed that SB 199 be brought on for
continued discussion. He noted teleconference participation
by JANICE ADAIR, Director, Division of Environmental Health,
Dept. of Commerce and Economic Development, to respond to
questions relating to the bill. No questions were raised.
SARA HANNAN, Alaska Environmental Lobby, came before
committee and spoke in opposition to the bill which she
termed "the violator's secrecy act." She referenced
previous testimony indicating that fourteen other states
have similar legislation which grants immunity and privilege
in cases of self-audit, and she advised that thirty-six
states have chosen not to pass similar laws and have instead
crafted narrow language.
Ms. Hannan suggested that the legislation deals with an
issue that is not a problem in Alaska. In hours of
testimony before Senate Resources, not one local case was
brought forward whereby penalties were forced on someone
working to comply with environmental or safety regulations.
Laws in Texas and Louisiana and examples of EPA leveling
punitive damages on corporations to comply with
environmental laws relate to other states. Referencing
prior comments that penalties might be levied for failure to
follow "simple paperwork procedures," Ms. Hannan suggested
that action would most likely only be taken if the violation
impacted public safety. She stressed that corporations do
not have the same level of privilege and privacy as
individual citizens. When corporations seek to do business
in Alaska, they should comply with local law. If they do
not do so, they have an undue business advantage over those
who comply. The state should not create an incentive to
forego compliance costs. Ms. Hannan acknowledged that
compliance with environmental and safety laws costs money.
Those laws, however, are put in place to protect the public.
If they are unduly burdensome, they should be repealed. The
legislature should not grant corporations privilege and
immunity for violations and non-compliance that makes them
more competitive in the marketplace.
Ms. Hannan reiterated that there is no problem with Alaska's
environmental and safety laws. No examples of problems have
been presented. She stressed need for free, open, and easy
discussion between corporations and regulators. The "dog"
hired by the state to make sure laws are complied with
should be respected by both sides. Ms. Hannan reiterated
that the granting of privilege puts the public right to know
at risk. Much of the problem with the proposed legislation
relates to privilege rather than immunity. She suggested
that the legislation would create problems that do not now
exist and urged that the bill not pass from committee.
GERON BRUCE, Legislative Liaison, Dept. of Fish and Game,
next came before committee to speak to current statutory
protection of anadromous fish habitat and why the proposed
bill would require additional funds to fulfill department
responsibilities. Protection laws within AS 16.05.870-80
require that those proposing activity in a fish stream
provide notification and plans to the department. The
department reviews the plans and works with applicants to
develop a viable project that protects fish habitat.
Stipulations on the permit are used to accomplish that goal.
The department has a high rate of permit approval under the
foregoing process (over 99% of those applying receive a
permit).
[Co-chairman Frank arrived at the meeting at this time.]
Concern regarding the legislation relates to the fact that
the department has no post-permit inspection capability.
The department thus depends upon the public and fishery
biologists who may be in the field and notice "a stream
running dirty" to notify the state that there may be a
problem. The department then contacts the permittee and
attempts to discover the problem. Under the proposed bill,
someone could conduct an audit, and the information would be
privileged. The department would no longer be able to "go
to the main source of information" traditionally utilized to
determine what the problem is and develop corrective action.
As a consequence, the department would need staff to collect
independent information to determine the cause of the
problem and ascertain whether proper corrective action is
being taken. The department thus seeks funding for an
additional staff person.
DWIGHT PERKINS, Special Assistant, Dept. of Labor, next came
before committee. He referenced two department concerns
raised when the bill was before Senate Resources. The first
relates to OSHA and the second to worker's compensation.
Senate Resources amended the legislation and removed
worker's compensation proceedings. Issues relating to OSHA
remain and give rise to concern that the state will no
longer comply with federal requirements. Alaska presently
has a "state plan" under which it operates its own OSHA
program. There are, however, certain things the state must
do to comply with federal law.
Mr. Perkins acknowledged that the Texas plan has privilege
language similar to that in the proposed bill. However, the
federal government ignores those statutes and goes in and
gets the information it needs. If Alaska were to proceed
under the proposed bill, the state could potentially lose
its program. As in Texas, the federal government would
retain ability to get the information it needs. Mr. Perkins
questioned whether the legislature would want OSHA to revert
to the federal program.
Speaking to penalties and OSHA compliance, Mr. Perkins
explained that the department has the ability to reduce "up
to 97.5% of the fines" levied against an employer or
individual for "things that they had wrong on their job
sites." In most situations, where good faith is shown and
it is acknowledged that an employer is attempting to take
corrective action, that is taken into consideration. More
importantly, the department "will go in, on consultation,
and . . . provide and perform the audits at no charge to the
employer." That information is privileged. Compliance
staff does not have access. Privileges are thus already
available on the consultation side of state OSHA
proceedings. Provisions in the proposed bill are not
needed.
Mr. Perkins next referenced 29 U.S. Code No. 651 and noted
that Sec. 17 relates to penalties, Sec. 8 relates to
inspections and investigations, and Sec. 18 mandates that
state requirements be "at least" as stringent as federal
requirements. He then asked that the committee consider
removing references to "health and safety" throughout the
bill. That would take care of the remaining Dept. of Labor
concern.
SAM KITO, III, Legislative Liaison/Special Assistant, Dept.
of Transportation and Public Facilities, next came before
committee. He described the circumstances whereby the
majority of airports in Alaska are owned and managed by the
department. Under the proposed bill, hundreds of industrial
leaseholders and tenants using lands at airports and
elsewhere would be subject to privileges and immunities.
State land managers would be unable to maintain tenant
environmental audit documents pertaining to use of public
lands. At the same time, state agencies, including
airports, would be subject to and responsible for
environmental compliance and violations occurring on those
lands and facilities. The bill would further reduce limited
information on the condition of state property and increase
the environmental liability of the state. DOTPF airports
have an overriding interest in obtaining environmental
audits and related documents because the state is liable for
environmental damages. Non-compliance, cleanup, ground
water contamination, public health and safety, and costs
caused by tenant activities are also included. The intent
of SB 199 is to encourage environmental cleanup and
compliance without penalizing individuals. However, as the
bill is written, landowners and tenants are placed at odds.
The department recommends that Sec. 09.25.465 (non-
privileged materials) be amended to add:
material required in public lease agreements,
permits, and licenses
Co-chairman Halford observed that testimony indicates that
under the proposed bill existing information would not be
available. He then voiced his understanding that bill
provisions state that if audit information is currently
required for other purposes, it does not warrant privileges
and immunities. Mr. Kito attested to "a little bit of a
clarity issue . . . on the lease provisions as a contract
and not a matter of law or regulation." Clarification of
this issue would take care of concerns regarding leases.
Senator Randy Phillips remarked on numerous statements in
opposition to the bill and asked who, other than the
sponsor, was supportive. Co-chairman Halford explained that
the bill emanated from an energy council recommendation. He
advised that he offered a different approach in Senate
Resources in terms of codifying existing federal privileges
and immunities. He stressed that a legitimate question is
raised in situations where an entity conducts an optional
audit, finds a deficiency, and is working on correction.
Action to fix the problem should not be used against the
entity. The Co-chairman acknowledged problems with the fact
that the proposed bill:
sets up a situation where both the privilege and
immunities can be used as a defense, possibly,
against actions that . . . aren't being cleaned up
. . . . Instead of being a shield, it becomes a
sword.
Senator Phillips again inquired concerning whether there was
Alaskan support for the bill. Co-chairman Halford
acknowledged much work on the bill in Senate Resources and
remarked on the complexity of the issue and associated
federal involvement.
Senator Zharoff inquired concerning the impact of the
legislation on tariff litigation. BETH KERTTULA, Assistant
Attorney General, Dept. of Law, spoke via teleconference
from Anchorage. She noted two impacts:
1. The state will have to pay for its own audits.
Based on '95 TAPS tariff litigation, it is estimated the
state would have to pay approximately $25 million to "gain
the same kind of information we're getting out of audits
from the owner companies and from Alyeska."
2. An overall impact on the tariff. Under state
royalty and production tax statutes, the state is
responsible for "about a quarter of the tariff." In the '95
case, which totals approximately $330 million overall, the
state portion is $82 million. Under privileges and
immunities sections of the bill, the state would not be
getting or using the information.
The state would thus be at quite a loss in tariff cases in
terms of environmental and safety audits which comprise the
greater part of the information in the '95 case.
In response to a further question from Senator Zharoff, Ms.
Kerttula clarified that while the case itself is worth
approximately $82 million to the state, under the proposed
bill the cost associated with obtaining needed information
to bring the case would have cost $25 million. Senator
Zharoff asked if there are other tariff cases for which the
proposed bill would require the state to gather information
on its own. Ms. Kerttula advised of ongoing tariff cases
and stressed that the state would not have access to future
audits.
Co-chairman Halford asked if privileges and immunities
provisions attach if the audit is required by law. Ms.
Kerttula voiced her belief that that would be a point of
contention. The joint pipeline office conducts certain
audits, and there would be no problem obtaining those. The
audits in question are owner audits not directly required by
the state or federal government.
In response to a question from Senator Zharoff, Co-chairman
Halford advised of his understanding that the bill would
apply to the entity reporting to the state rather than the
state itself. Ms. Kerttula concurred.
Co-chairman Halford queried members regarding disposition of
the bill. Senator Randy Phillips expressed his belief that
the bill should be returned to Senate Resources for
additional substantive work. Co-chairman Frank agreed,
saying that while it could be placed in a Senate Finance
subcommittee, it might be more appropriately returned to
Resources. As an alternative, he suggested that the sponsor
be asked to develop a committee substitute.
Co-chairman Halford directed that the bill be held in
committee and asked that Senator Phillips work with the
sponsor, Senator Leman.
SPONSOR SUBSTITUTE FOR SENATE BILL NO. 181
An Act relating to the promotion of Alaska businesses
through signs, displays, and devices within or adjacent
to highway rights-of-way, to municipal regulation of
directional signs, displays, and devices, and to
penalties for violations related to outdoor
advertising.
BRETT HUBER, aide to Senator Green, came before committee.
Directing attention to CSSSSB 181 (STA), he explained that
the bill would establish the Dept. of Transportation and
Public Facilities tourist oriented directional signs (TODS)
program in statute and allow placement of signs on private
property outside of the right-of-way. Codification of the
program will provide for a well-planned and regulated system
of directional signs to benefit visitors and businesses that
serve them.
The department presently administers TODS as an experimental
program consistent with standards established by FHA and the
manual of uniform traffic control devices. The absence of
statutory authorization for the program has left the public
out of the regulatory process. Statutory enactment would
provide firm legal footing for the program to continue.
Opinion from legislative counsel suggests that without
statutory standing the program would be unlikely to
withstand judicial challenge.
Private property placement of uniform (18" x 90")
directional signs would allow establishments a limited,
strictly controlled opportunity to direct clientele.
Stringent guidelines (more strict than federal law allows)
and requirements for individual application and approval
offer ample opportunity for the state to maintain roadway
view sheds. As evidenced by signatures of visitors gathered
by campground owners, tourists seek more adequate
directional signs.
Mr. Huber directed attention to additional material from the
Federal Highway Administration and noted that it highlights
concerns regarding language within the bill. Referencing
FHA indications that TODS signs may only be placed in the
right-of-way, Mr. Huber advised of the sponsor's intent to
develop a uniform program allowed by Dept. of Transportation
and Public Facilities and approved on a case-by-case basis
to give businesses an opportunity to provide directional
signs while maintaining state control of roadway appearance.
Mr. Huber then voiced his understanding that directional
signs outlined in the bill would be allowed under federal
guidelines but would be under a different program than TODS.
The second concern raised by FHA relates to sign dimensions.
Mr. Huber referenced information stating that signs should
not exceed seventy-two inches in width. The current TODS
program allows for ninety-inch signs.
Mr. Huber asked that the committee assist in developing
language to remedy federal concerns and to satisfy business
needs.
BOB RUBY, Division Administrator, Alaska Division, Federal
Highway Administration, came before committee accompanied by
JIM BRYSON, Division Right-of-Way Officer, Federal Highway
Administration. Mr. Ruby directed attention to a handout
(copy on file in the Senate Finance file for SB 181) and
advised that it contains:
1. An overview relating to outdoor advertising
2. Umbrella law (outdoor advertising)
3. Information on "on-premise" signs
4. Requirements for the TODS program.
5. General comments on SB 181
In response to questions by Co-chairman Halford relating to
sign dimensions, Mr. Ruby acknowledged that TODS was
established as an experimental program. In an attempt to be
as flexible as possible, "the ninety inches was accepted at
that time." That is not considered a significant issue and
would not be considered a fatal flaw. Federal law covers
all fifty states. The administration has authority at the
state level to make reasonable adjustments for unique
conditions.
Brief discussion occurred between Co-chairman Halford and
Co-chairman Frank regarding prior billboard legislation that
failed to become law. Further comments followed regarding
sign requirements for commercial/industrial areas.
Referencing the above-noted information regarding outdoor
advertising, Mr. Ruby acknowledged that Alaska law is more
severe than federal law in that federal law allows for
commercial/industrial areas. Aside from that, one cannot
have signs in rural areas or beyond the right-of-way. The
problem with the proposed bill is the private property
allowance. TODS signs and motorist information signs are
considered official signs and formatted in accordance with
MUTCD. All directional and official signs must be located
within the highway right-of-way so that there is proper
control over the signs.
Senator Randy Phillips asked if there is an official size
for such signs. Mr. Ruby responded affirmatively, saying
that all official signs for the traveler (gas, food,
lodging) or tourist oriented destination signs have
restrictions as far as size, placement, number, location
within the highway right-of-way, etc. There is little state
control of signs on private property outside of the right-
of-way.
Senator Rieger directed attention to language in his
proposed amendment:
The program must allow the department to maintain
control over the location of signs, and the
department must control the location of signs in a
manner which maintains the quality of scenic
areas.
He advised that the language should be inserted in the
"heart of the bill" which describes the sign program.
Co-chairman Halford asked if the foregoing language meets
control requirements. Mr. Ruby stressed that official signs
must be located within physical right-of-way limits. Co-
chairman Frank attested to the fact that the Dept. of
Transportation and Public Facilities maintains control
outside of the right-of-way. He advised that he had placed
a sign outside of the right-of-way, on private property, and
was told to take it down.
In response to a suggestion from Co-chairman Frank that two
parallel programs be developed, Mr. Ruby said that federal
regulations do not apply to zoned, commercial/industrial
areas. The Co-chairman then suggested that the state could
have a program, existing outside of the right-of-way but
limited to size restrictions, which would mirror the TODS
program in zoned, commercial/industrial areas.
END: SFC-96, #45, Side 1
BEGIN: SFC-96, #45, Side 2
Discussion occurred between Senator Zharoff and Mr. Ruby
regarding civic organization signs. Mr. Bryson explained
that they are considered official and directional signs
under outdoor advertising laws and regulations. They are
legitimately erected off-right-of-way signs relating to
public-interest, nonprofit groups.
Mr. Ruby acknowledged that one problem relates to the fact
that state law is much more restrictive than federal law in
commercial/industrial areas where signs are expected. That
has generated some of the controversy.
Discussion followed between Senator Rieger and Mr. Ruby and
Mr. Bryson regarding signs along the Glenn Highway. Mr.
Bryson said that if state legislation enabled signs to be
erected in unzoned commercial/industrial zones, a specific
definition would have to be developed. The erection of
signs would then have to comply with the definition of
"unzoned commercial" within the state of Alaska. Mr. Ruby
acknowledged that, because of the wide right-of-way in
Alaska, when a sign is placed on private property outside of
the highway right-of-way, it is too far from the line of
sight to be seen. Many property owners thus place signs in
the right-of-way and are subsequently asked to remove them.
To address the issue, the federal government developed a
program unique to Alaska. It allows property owners to
lease highway right-of-way from the state and place signs
immediately adjacent to property in areas where they are
visible and safe from collisions. The federal government
has tried to address individual issues in rural areas of
Alaska. Mr. Ruby voiced his understanding that the approach
is working satisfactorily but acknowledged room for
improvements and suggestions.
Senator Rieger referenced the handout from Mr. Ruby and
requested a definition of "an unzoned commercial or
industrial zone." Mr. Ruby explained that a single entity
does not constitute a commercial area. It is merely a
business located along the road. A series of businesses
along a strip creates a commercial or industrial area.
Senator Rieger cited an example of a number of road houses
located in close proximity. Mr. Ruby said that, on request,
the FHA could make a site-specific evaluation and a clear
determination.
Co-chairman Frank voiced need to accommodate federal
restrictions within the proposed bill. He then suggested
that the sponsor be asked to develop a committee substitute
that allows for directional signs in commercial and
industrial areas. While those signs would be limited to
specific size, they would not be restricted to location
within the right-of-way. For areas other than commercial
and industrial, the existing TODS program would prevail and
location of signs would be within the right-of-way.
Further discussion followed among members citing sign
situations at Tok, the Glenn Highway, and the Seward
Highway.
Senator Zharoff inquired regarding the federal definition of
a rural road. Mr. Ruby answered, "Something outside of a
built-up city, town, village." Unincorporated villages and
small communities are considered commercial areas for sign
purposes. He advised that he would produce a definition for
"rural."
SAM KITO III, Legislative Liaison/Special Assistant, Dept.
of Transportation and Public Facilities, came before
committee in opposition to SSSB 181. He pointed to
difficulties associated with enforcement of sign
restrictions for signs located outside of the right-of-way.
At the present time, these signs are easily identified as
illegal signs. A specific category of such signs would make
enforcement against illegal signs difficult.
Further, proposed decrease of the penalty from a misdemeanor
to a violation will leave the state no recourse in instances
of repeat offenders. Co-chairman Halford asked if the
department was opposed to all signs outside of the right-of-
way. Mr. Kito attested to concern regarding placement of
signs from both a legal enforcement and aesthetic
standpoint. Co-chairman Frank questioned concern in
commercial and industrial areas, given size restrictions.
Mr. Kito cited Wasilla and Soldotna as examples of local
control of signage outside of the right-of-way. He noted
the proliferation of signs and spoke to resulting confusion
for motorists. Both Co-chairmen took exception to Mr.
Kito's comments. They said that feedback from visitors
indicates Alaska lacks sufficient directional signs.
RICK BARRIER, President, Alaska Campgrounds Owners'
Association, next spoke via teleconference from Anchorage.
He advised that the association consists of 70 to 80
campground owners and "over 100 other associate members . .
. primarily along the highway system." Mr. Barrier voiced
association support for the legislation and cited safety
issues relating to proper advance notice of sites for
visitors driving large campers. The bill would enable
business owners to do a better job of informing the public
of their locations without deteriorating "the public image."
DANIEL STROUSE, R/V park owner, Palmer, Alaska, next
testified from Palmer. He observed that after eight years
in the business, the number one visitor complaint is lack of
tourist-related signs. The second most often asked question
is "Where are your route sign numbers." Mr. Strouse
stressed that many of Alaska's tourists are elderly visitors
driving large "eighteen wheelers." It is difficult for them
to anticipate need to stop when a business is only allowed
an entrance sign. Visitors have constantly remarked on need
to improve signage.
Mr. Strouse further attested to complaints from visitors
that when they see a viewpoint sign and pull over, they are
confronted with "nothing but cottonwood trees and
overflowing trash cans."
Further, Mr. Strouse noted that his campground is across the
road from a state recreation area. There are two, huge
signs announcing the entrance to the state park while Mr.
Strouse is denied opportunity to give advance notice of his
private park.
Referencing Mr. Strouse's comment regarding lack of route
numbers, Co-chairman Halford noted that Alaska has so few
highways that it names rather than numbers them. Mr. Stouse
stressed that while that is known by Alaskans, it is new to
visitors who are "nervous when they can't find a route
sign." The Milepost is "almost useless anymore because
there are relatively few mileposts left on the highway."
RED STARR, R/V park owner, next testified from Palmer. He
attested to the two-and-a-half-year effort involved in
procuring TODS along the Old Glenn Highway. While those
signs are working, there is still need for additional
signage. TODS are small and located at intersections.
There is no effective advance sign.
Mr. Starr referenced his prior conversation with Mr. Ruby
regarding placement of signs on commercial property as well
as comments by the state that such signs would lead to loss
of federal highway funding. It appears obvious from
discussion with FHA personnel that the state has been using
federal requirements and loss of federal funding as "a
scapegoat" to allow DOTPF to do "whatever they wanted to."
Mr. Starr stressed need for a cooperative effort. He then
commented further on size restriction on signs, suggesting
that even larger signs than presently allowed would not
obstruct most views.
Co-chairman Halford asked that Co-chairman Frank work with
the sponsor in development of a committee substitute for the
bill. He then directed that it be held in committee pending
receipt of a new draft.
CS FOR HOUSE JOINT RESOLUTION NO. 5(FIN) am
Proposing amendments to the Constitution of the
State of Alaska relating to terms of legislators.
Co-chairman Halford directed that CSHJR 5 (Fin) am be
brought on for discussion. He then referenced SCS CSHJR 5
(Jud) and a proposed amendment by Senate Judiciary to
correct an overreach relating to magistrates.
CHRIS CHRISTENSEN, General Counsel, Alaska Court System,
came before committee. He explained that the supreme court
has taken no position on sections applying to non-judicial
officers. However, it opposes sections that would create
fifteen-year term limits for judges and magistrates.
Alaska's system of judicial appointment and retention is
considered a model and has been adopted by other states.
The system will not be improved by the proposed bill but
will, instead, be severely compromised. Judicial office is
fundamentally different than political office. Alaska's
constitution recognizes that difference. Justices and
judges are appointed by the Governor rather than elected by
voters. After assuming office, they do not face contested
election. They stand for retention on a vote by the public.
Magistrates are not constitutional officers. They are
merely employees of the court system who serve at the
pleasure of the presiding judge.
Mr. Christensen noted that supporters of the original
version of HJR 5 made several arguments in support of their
views. He then said that none of the arguments "have any
applicability, whatsoever, to the judiciary." While it is
argued that public opinion polls show support for term
limits, most polling data relates to Congress. Mr.
Christensen said he had seen none that relates to term
limits for judicial officers. No such initiatives or
statutes have been passed elsewhere in the nation in the
last few years. Mr. Christensen further advised,
Second, it's argued that term limits will bring in
people with new ideas. Mr. Chairman, I think I
don't have to tell you, judges aren't supposed to
have ideas, new or otherwise. Judges are supposed
to take your laws and apply them to individuals.
The third argument is that term limits level the playing
field for challengers. There are no challengers in judicial
retention elections. The voting public has an opportunity
to approve or disapprove the action of each judge. Judges
have been rejected by the voters in the past. The retention
election is the appropriate form of judicial term limit.
Mr. Christensen stressed that the practical effect of
imposing a fifteen-year term limit on judges would be to
deter "anyone under the age of 45 from applying to be a
judge." Those under that age would be forced to leave the
bench before retirement age and begin a second career at
that time. The term limitation would also have a negative
impact on the retirement system. Most judges presently
serve longer than fifteen years before retiring. The
actuarial basis of the judicial retirement system assumes
that judges will continue to make contributions to the
system after they have fully vested. If all judges are
required to retire at fifteen years, there will be
substantially more judges drawing retirement pay at any one
time, and the state will be forced to increase its
contributions to the retirement system.
As evidence of further negative fiscal impact, Mr.
Christensen noted that court system fiscal notes for new
criminal law do not reflect the cost of a sitting judge but
use of a recently retired judge on a pro-tem appointment.
Because such judges draw retirement pay, the court system
pays only the difference between their retirement and what a
sitting judge receives. Legislation is thus implemented
based on a cost of approximately fifty cents on the dollar.
Under the proposed bill, judges would be prohibited from
serving for three years after retirement. The court system
will thus have difficulty getting pro-tem judges. That will
substantially slow the process, and the court system will
probably have to pay more to obtain judicial services.
In his closing remarks, Mr. Christensen stressed the supreme
court's belief that the state judicial system will work best
if members "come from the widest possible demographic pool,
and if the voters are allowed to decide which judges are
doing a good job and deserve to be retained."
Co-chairman Frank inquired concerning changes made in Senate
Judiciary. Mr. Christensen explained that the Judiciary
version adds municipal officers to term limits. The House
resolution bill applies only to the legislature.
REPRESENTATIVE THERRIAULT, sponsor of the resolution, next
came before committee. He explained that the House version
required an individual to "sit out for two, full,
consecutive terms." Changes in Senate Judiciary would
require a former legislator to "sit out for four years
unless you were appointed to fill somebody's seat," if they
left office.
Senator Randy Phillips inquired concerning the rationale
behind the resolution. Representative Therriault spoke to
the "power of incumbency" that is not available to
challengers. He voiced his belief that, "after a certain
amount of time, you should break that incumbency."
Senator Phillips remarked that cumulative averages since
statehood indicate that "every two years 35 percent of the
Senate is gone, and every two years 45 percent" of the House
is gone. He suggested that being an incumbent puts one in a
negative rather than positive position. Representative
Therriault acknowledged a healthy turnover in the state
legislature. He explained that the bill is aimed at those
in office for 25 to 30 years. Senator Phillips raised
concern that the resolution would deny voters the right to
vote for whomever they wish. He stressed that voters can
rid themselves of legislators they do not want. They have
utilized that opportunity numerous times. The facts do not
support the theory behind the resolution. Representative
Therriault pointed to prohibitions denying both the
President and Alaska's Governor third terms. Senator
Phillips noted that much power is concentrated in those
positions while it is shared among 60 members of the
legislature.
Co-chairman Halford told members that the National Council
on State Legislatures views Alaska's legislature as one of
the weakest in the country, in terms of power held by the
Governor. He added that while he generally supports term
limits, there is need for institutional legislative memory
in the balance of power between the legislative and
executive branches. He further observed that things done in
response to public interest have weakened the legislature in
several areas. Nothing since statehood has weakened the
Governor. Questions are thus raised concerning the balance
of power. Representative Therriault acknowledged need for
an adequate learning curve for legislative proficiency.
END: SFC-96, #45, Side 2
BEGIN: SFC-96, #46, Side 1
Senator Donley concurred in comments by Co-chairman Halford,
advising of the following limitations on the legislature:
1. 120-day session
2. stringent ethics law applied to the legislature
while the executive branch operates under
much less burdensome law
3. requirement for a three-quarter vote on override
of the Governor's veto on appropriation items.
Alaska is the only state where the Governor has
reapportionment power. Further, few states provide the
line-item veto power enjoyed by Alaska's Governor. The need
for centralized power has lessened rather than increased
since statehood, yet the power of centralized government has
increased over that period of time. Philosophically, "it's
gone the opposite of what it should have gone." Senator
Donley said he could support the resolution if provisions
are packaged with other reforms such as legislative power
over state-created public corporations.
Senator Rieger concurred in need to maintain a balance of
power. He expressed additional concern over placing
multiple proposals before the voters that "make it look more
and more like a constitutional convention." He questioned
the kind of precedent that would set.
Co-chairman Halford noted that the upcoming election would
provide a test for voters confronted with complex, multi-
page initiatives dealing with topics that are generally
supported. He attested to the time required to read full
ballot provisions and suggested that voters may reject
"things that they would otherwise like, because they're too
complex and presented with too many facets." The Co-
chairman specifically cited issues relating to both fish and
game and campaign reform.
Representative Therriault voiced his belief that the Senate
Judiciary version confuses the issue and asked that
committee deliberations revert to the House resolution. Co-
chairman Halford concurred in regard to Judiciary inclusion
of magistrates. He said that magistrates would be removed
from the resolution since they were inadvertently
incorporated.
Comments followed by Co-chairmen Frank and Halford regarding
the regulatory powers of the executive branch.
In response to a question from Senator Zharoff,
Representative Therriault advised that the House resolution
speaks specifically to House and Senate legislators. It
does not include municipal officials.
Further brief discussion followed regarding voter rejection
of judges. Senator Rieger voiced concern that mandating a
greater degree of turnover in the judiciary further tilts
the balance of power toward the executive branch since the
Governor has the power to appoint judges. Co-chairman Frank
concurred and indicated a preference for the House
resolution. He remarked that judicial retention is a
separate issue. Senator Donley suggested that requirement
of a super majority (60 to 65 percent) for retention of a
judge might be a better approach. Additional discussion of
an elected judiciary followed. Co-chairman Halford
concurred that the balance of power question was made worse
by inclusion of the judiciary within the resolution.
Senator Zharoff suggested that term limits on the
legislature should do away with the prohibition of having to
wait a year prior to pursuing certain employment
opportunities.
Further discussion of the balance of power between the
legislature and executive branch followed. As a counter
argument to need for institutional memory within the
legislature, Co-chairman Frank cited the institutional
tendency toward the status quo that occurs the longer an
individual serves. He noted that freshmen legislators "are
willing to come in and change things more aggressively than
are those that have been here for twelve years plus . . . ."
The viewpoint of those who know they will serve limited
terms may be valuable to the process.
Co-chairman Halford voiced his belief that the greatest
abuse of legislative incumbency in other states is
leadership incumbency. Alaska has a tradition of not
repeating presiding officers. Abuses occur when individuals
retain the position of senate president or speaker of the
house for twenty years.
Co-chairman Halford directed that the bill be held in
committee and noted consensus to "go back to the House bill
as a starting point and work from there."
ADJOURNMENT
The meeting was adjourned at approximately 11:15 a.m.
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