Legislature(2001 - 2002)
04/12/2001 09:13 AM Senate FIN
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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
April 12, 2001
9:13 AM
TAPES
SFC-01 # 73, Side A
SFC 01 # 73, Side B
SFC 01 # 74, Side A
CALL TO ORDER
Co-Chair Pete Kelly convened the meeting at approximately 9:13 AM.
PRESENT
Senator Pete Kelly, Co-Chair
Senator Dave Donley, Co-Chair
Senator Jerry Ward, Vice Chair
Senator Loren Leman
Senator Gary Wilken
Senator Alan Austerman
Senator Donald Olson
Senator Lyda Green
Also Attending: SENATOR DRUE PEARCE, Alaska State Legislature;
JUDGE RABINOWITZ
Attending via Teleconference: From Anchorage: STEPHANIE COLE,
Alaska Court System; WILLIAM COTTON, Alaska Judicial Council;
SUMMARY INFORMATION
SB 123 - FEDERALLY FUNDED PROJECTS OF RAILROAD
After a brief discussion and testimony from the Alaska Railroad
Corporation the bill was reported from Committee.
SJR 22 - CONST. AM: JUDICIAL OFFICERS' TERMS
The Committee heard testimony from the Alaska Court System and
the Alaska Judicial Council and the bill was held in Committee.
HB 72 - ASST.ADJUTANT GEN.: MISSILE/SPACE DEFENSE
After brief debate the bill was reported from Committee.
CS FOR SENATE BILL NO. 123(TRA)
"An Act relating to legislative approval for the design and
construction of facilities of the Alaska Railroad Corporation and
railroad line realignment and railroad corridor projects of the
Alaska Railroad Corporation."
SENATOR DRUE PEARCE, sponsor of SB 123, indicated that they had a
work draft before them.
Senator Leman moved to adopt the committee substitute (CS) for SB
123, 22-LS0522\P, Utermohle, 04/10/01, as a work draft.
Co-Chair Kelly asked if there were any objections.
There were no objections and Version P was adopted.
Senator Pearce indicated that Version P changed dramatically the
direction that she was going in terms of approval of projects on
the facilities that the railroad would be building. She explained
that the CS would require the railroad corporation to obtain
legislative approval for the program of projects, which were the
lists of federally funded projects required by the federal transit
administration and the federal highway administration. The CS
represented the collaborative effort between herself and the
railroad, which would require approval for major construction
projects while excluding regular maintenance projects, minor
construction and realignment project and projects outside of
communities that were entirely on federal lands. She pointed out
that the bill required the railroad board of directors to present
their program to the legislature on the first day of each regular
session; that program would be referred formerly to the House and
Senate Finance Committees for review. She indicated that the
legislature would be able to disapprove, by law, the expenditure of
federal funds for a project during the first 60 days of session.
She noted that failure of the legislature to disapprove would be
recognized as approval for the expenditure of funds. She commented
that the process was very much like that of the Local Boundary
Commission.
Senator Pearce further stated that the bill was introduced in
response to the Alaska Railroad Corporation's multi-million dollar
rail station project at the Ted Stevens International Airport in
Anchorage. She pointed out that the railroad received direct
federal appropriations for that project. She indicated that there
was no input or coordination with the legislature prior to the
project and, more importantly, there was no public review process
in Alaska at any level before the project was begun. She noted
that the project would impact a large number of Anchorage
residents. She said that there were also concerns with the
feasibility and economic practicality of the project; the original
appropriation for the terminal was $28 million and the realignment
project was expected to cost $18 million. She pointed out that the
market analysis did not support spending $46 million on the
project. She believed, in response to the concerns with the
Anchorage rail station, that they should require the railroad to
obtain legislative approval for future projects.
[Note: Microphones inoperable for Co-Chair Kelly, Senator Leman,
Co-Chair Donley, Senator Green and Senator Austerman]
Co-Chair Kelly referred to the CS with a question [exact statement
inaudible].
Senator Pearce pointed out that on page 2 of the CS there were
exceptions that did not apply to the subsection; those being that
the facility construction cost be less than $5 million and the
track realignment construction cost be less than $10 million.
Therefore, there were exemptions for the smaller projects.
Senator Olson understood where the concerns were toward the current
projects, but if they looked at the long-term effects of the
increased traffic through the Anchorage international airport how
were they going to accommodate for the increase in the amount of
people traveling nowadays without a rail facility.
Senator Pearce pointed out that the Anchorage airport terminal
project was going to go forward. She noted that Europe did have a
much better rail system. Unfortunately, in Anchorage they would be
held back because the track would only go north and south. She
maintained that in the United States while the market analysis
spoke about cities where there was a lot of commuter traffic to and
from airports every city where it had been successful was a city
with millions of people. She noted that a city the size of
Anchorage would not have the population to support constant
commuter service.
Senator Wilken wondered what Senator Pearce's intent was if the
project construction costs were larger than $10 million and the
legislature were to disprove it.
Senator Pearce indicated that the railroad would have to readdress
the project and the concerns. She did not believe that the
legislature would turn down a project unless there was an outcry by
the people in the locality of where the project would take place.
She stressed that it would be very difficult to ask the legislature
to act within 60 days and reminded the Committee that the Governor
could always veto the bill. Therefore, they would have to have
two-thirds of the legislature fighting against a project before one
would actually be turned down. She believed that it was important
for the railroad to be required to come before an elected body,
like the legislature, for the purpose of bringing the people into
the process and assist the railroad in being more cognizant of the
issues.
Senator Wilken voiced his appreciation for the changes that were
th
made. He wondered if on the 58 day the legislature were to turn
down a major project whether the railroad would have to wait until
the next session to move forward on the project.
Senator Pearce replied, "Yes. For construction."
Senator Wilken clarified that they would not have another look at
it until the next session.
Senator Pearce explained that the legislature would authorize the
use of federal funds exactly like they did with the Department of
Transportation and Public Facilities on building roads. She
predicated that the minute the railroad saw enough concern with a
project they would be working with the legislature.
Co-Chair Kelly [indiscernible].
Senator Pearce agreed with Senator Kelly. She added that in seeing
the ideas of the railroad for the future and their opportunity to
receive money from the federal government it would not surprise her
to see the railroad come to the legislature for help with matching
funds, because most of the federal programs do require matching
funds. She pointed out that the railroad had matched dollars over
the years, but if they were handed $100 million for a huge
realignment she did not see how they would come up with a 20
percent match. She believed that the legislature would become more
active in railroad expansion.
Senator Green wondered if the language on page 2, line 4 would
apply to the Mat-Su Borough.
Senator Pearce understood that boroughs count as communities. She
clarified that if they allocated state funds for a federal match
than that would be considered approval.
Senator Green indicated that she was not sure what the language
stated exactly, but that the money was appropriated as leverage for
federal money. She wondered if they would have to wait an entire
session for that approval.
Senator Pearce referred to page one of the bill on the bottom of
the page and indicated that if a project were substantially changed
then the railroad would have to come back to the legislature for
approval.
Senator Green requested clarification that the project would not
have been approved. She pointed out that there were miles of
railroad to interconnect and wondered if those projects would fall
under the requirement for additional legislative approval.
Senator Pearce answered probably, because in order to get on the
federal list for projects they would have to come back to the
legislature. She assumed that the project would have to go through
the process at the federal level already. She further clarified
that if a project wanted to receive federal funds then it would
have to appear on the program at some point and the first time it
appeared there with construction money would be the year for
legislative approval.
Senator Leman seemed to him that if the legislature were to
disapprove, by law, then the legislature could also approve, by
law, if there were a change in the project sometime after the
disapproval. He clarified that it could be during the rest of the
regular session or even during a special session rather than on the
first day of the next session and the legislature would not be in
violation.
Senator Pearce agreed, but believed that it could not be through
the capital budget process, rather there would have to be an actual
law passed.
Senator Leman agreed.
Senator Pearce reiterated that they could not get to it through the
Legislative Budget and Audit process.
Senator Leman interpreted it the same way.
Senator Pearce noted that when they ran into problems at the
legislative level there would be enough scurrying about that some
accommodation would be found before the end of session.
Senator Leman agreed. He questioned whether the definition of
"substantial" with regards to the pipeline ride-of-way would
concern them or the railroad.
Senator Pearce stated that she was comfortable with the definition
of "substantial" provided by Mr. Utermohle. She explained that if
the railroad had funds to build to Point Mackenzie and they decided
to build to Skwentna instead that would be considered a
"substantial" change. On the other hand, she noted that if the
railroad had to change a route a little bit to accommodate a wolf
den then that would not be considered a "substantial" change. She
reminded the Committee that in federal law if those projects change
then there would need to be a reauthorization process.
Senator Leman clarified that in federal regulation there would
probably be a definition of "substantial."
Senator Pearce said that she was not sure if it was defined or not
in the federal regulations. She did not expect the railroad to go
outside of what they intended. She noted that the railroad did
have a lot of land and it was hard to say what they might come up
with in terms of development.
Senator Ward commented that the Alaska railroad was an interesting
entity. He wondered why they would pass this legislation rather
than putting the railroad under the executive budget act.
Senator Pearce parlayed that this would be a "slap on the hand"
whereas that would be a "sledgehammer."
Senator Ward questioned the specifics of it and wondered if this
legislation would impede the railroad's ability to do what they
felt was best.
Senator Pearce answered that sure it would impede their ability to
some extent, but not much. She believed that it was something that
the railroad should do and she worked with the railroad to come up
with something that they were willing to do. She pointed out that
the railroad was an asset of the state and all Alaskans were
shareholders of the railroad. She indicated that if they want the
railroad to be able to act like a business than putting them under
the executive budget act would not be the way to go. She said that
she did not feel that the government acted well as a business.
JOHN BINKLEY, Chairman of the Board, Alaska Railroad Corporation,
testified via teleconference from Fairbanks, thanked Senator Pearce
for the CS, Version P, and indicated that it was a tremendous
improvement to the CS that came out of the Senate Transportation
Committee. He pointed out that it was an effort on Senator
Pearce's part out of frustration that she had felt with the
construction of the project at the Ted Stevens International
Airport in Anchorage. He gave some background from the railroad's
point of view on that project. He explained that the Department of
Transportation and Public Facilities approached them when the
department began the reconstruction of the terminal at the airport.
The airport had dictated that if the railroad wanted to maintain
their existing line than they had to be apart of the project. He
said that the intent of the railroad was to preserve that corridor.
He urged that they tried to communicate with the legislature on
their projects and never did get a huge reaction or negative
reaction. He noted that they did as much as they could to inform
the public about the project. He referred to the additional cost
of the rails going into the airport and noted that it was being
looked at for future projects if there was a tremendous amount of
use of those rails. He thought that if they got to the point to
spend additional money to realign the rail it would be a tremendous
success. He said that they hoped there would be acceptance of
commuter rail in the Anchorage area and that they would increase
the number of trains going in and out of the airport. He commented
that he would see that as a success if it indeed were to happen.
Mr. Binkley continued that two of the key pieces in the legislation
were that it forced a close working relationship between the
railroad and the Department of Transportation and Public Facilities
and secondly, that the railroad would have autonomy. He noted that
the number one consideration was safety and number two was the
customer. He expressed that where there was concern with the
original CS from the Senate Transportation Committee with regards
to it crossing the line with regards to the legislature becoming an
integral part of the decisions of the railroad. He again thanked
Senator Pearce for her work on the legislation.
Senator Leman moved to report CS SB 123, 22-LS0522\P, Utermohle,
4/10/01, from the Committee.
There was no objection and the bill was reported from Committee.
AT EASE 9:49 AM/9:51 AM
CS FOR SENATE JOINT RESOLUTION NO. 22(JUD)
Proposing an amendment to the Constitution of the State of Alaska
relating to the retention elections for justices of the Alaska
Supreme Court and judges of the superior court.
STEPHANIE COLE, Administrative Director, Alaska Court System,
testified via teleconference from Anchorage, indicated that the
Alaska Court System concurred with the position taken by the
judicial council. She stated that the Alaska Court System believed
that the proposed shortening of the periods between retention
elections in the resolution would have a serious effect on the
quality of justice in the State of Alaska. She explained that the
merit selection and retention system currently in place in Alaska
was cited quite often as a model system balancing judicial
independence and judicial accountability. It was a system that
preserved the judges ability to make decisions impartially and
without undue political pressure against the public's rights to
hold the judges accountable. She said that they really felt that
judicial accountability was enormously important and was in no way
inconsistent with judicial independence.
Ms. Cole further explained that the three aspects of judicial
accountability were political accountability, decisional
accountability and behavioral accountability. She noted that each
of those aspects was important and each served a different purpose.
She stated that political accountability was accomplished through
the retention election process, which allowed the public to approve
judges. Decisional accountability was related to the issue of
whether a judge was correct or incorrect in a particular decision
and it was accomplished through the appellate process as the case
went up for appeal. Behavioral accountability would come into play
when judicial misconduct was at issue and it was provided through
the judicial discipline process. She warned that when they start
proposing to shorten retention terms in the way that SJR 22 would
do then they create a situation where they start blurring the lines
between political accountability and decisional accountability to
the detriment of the justice system. She pointed out that the
current retention terms were in the mainstream of retention terms
around the country.
Ms. Cole further stated that while their role as legislators was in
large part to reflect the will of the majority and their
constituents, the role of the judge was to protect the minority
against which the will of the majority should never be able to
prevail. She indicated that the judge must apply the law to a set
of facts without regard to the political atmosphere or the will of
the majority. She noted that this was very difficult and often an
unpopular task, but it was enhanced by the current system that
provided some protection against a judge being punished politically
for a particular decision. She urged that when they start
shortening the period between retention elections then it becomes
more likely that political campaigns would be waged against
individual judges because of a single unpopular decision. She
explained that as campaigns were mounted against judges then judges
could and would respond with counter campaigns. She noted that it
had become a serious public concern throughout the country, because
it could compromise a judge's ability to rule neutrally and be
perceived as neutral.
SFC 01 # 73, Side B 10:01 AM
Ms. Cole continued that judges needed to be evaluated at regular
intervals about how they handled all their cases instead of how
they handled one or two highly-visible cases. She stressed that
the legal system commanded allegiance only when it commanded
respect and it only commanded respect when the public believed that
the judges were neutral. She expressed grave concern that by
shortening the period between retention elections it would also
discourage qualified applicants from seeking judicial positions.
She noted that judicial salaries were currently dropping. She
concluded that the Alaska Court System was opposed to SJR 22.
Senator Ward requested clarification that Ms. Cole had stated that
the role of the state was to protect the minority and the role of
the legislature was to protect the majority.
Ms. Cole clarified that, generally, the role of the legislature was
to protect the rights of the constituents or the majority, whereas,
the primary role of a judge was to protect the rights of the
minority against which the will of the majority should never
prevail. She further clarified that she had not intended to say
that the legislature did not represent the minority, but rather
that it was the role of the judge to protect the rights of the
minority against infringements.
Senator Ward spoke to the sovereign rights of the individual
regardless of whether they were in the minority or the majority.
Senator Leman referred to Ms. Cole's comment about Alaska being a
model of the system. He argued that it was not really a model that
would get the most qualified judges.
WILLIAM COTTON, Alaska Judicial Council, testified via
teleconference from Anchorage, responded to Senator Leman's
comments. He stressed that almost every decision made by the
judicial council was unanimous. He stated that the council opposed
SJR 22, because they believed it would be counterproductive to
their goal of encouraging judicial excellence. He echoed some of
Ms. Cole's comments. He indicated that the council urged them to
think long and hard before upsetting the system and vote against
SJR 22.
Co-Chair Donley mentioned that 20 other states had merit selection
retention laws similar to Alaska. He noted that three of those 20
states had the same retention terms proposed by SJR 22. He
wondered if that was also Mr. Cotton's understanding. He pointed
out that in Kansas each community could choose whether or not they
wanted to conduct a direct election or use an appointment retention
system. He said that it was a 50/50 split statewide. He also
referred to Oklahoma and indicated that two of the 20 states that
allegedly had the same system as Alaska, in fact, had a significant
number of their judges elected.
AT EASE 10:19 AM/10:24 AM
Mr. Cotton explained that many of the states nationwide were very
different from Alaska in that rather than having a statewide system
they had municipal courts, county courts and state courts. He said
that the courts in the United States had three basic systems: a
merit selection system, similar to Alaska; appointed system, where
the Governor appoints judges; and an elected system.
Co-Chair Donley pointed out that they did have a unified court
system. He indicated that other states had the flexibility to
select other systems. He noted that it was not accurate to say the
other 20 states used a retention system. He wondered what the
criteria were on the surveys.
Mr. Cotton indicated that they did report all the survey
information. He noted that they also reported detailed demographic
information. He said that they promised confidentiality in order
to get accurate information.
Co-Chair Donley wondered if all the responses were included in the
information given to the public.
Mr. Cotton replied that the information was disseminated in several
different ways. He noted that everyone that responded got his or
her numbers reported.
Co-Chair Donley wondered if the distinction between those with
direct personal experience and those with just an opinion were
carried over into the recommendation process.
Mr. Cotton explained that they did report the different levels of
professional experience.
Judge Robinowitz, supreme justice, Court of Alaska, pointed out
that what they were dealing with was one issue and that being a
periodic evaluation of judges under a merit selection system.
There use to be no accountability and they rejected that and wanted
the judiciary to be accountable and then a judge would be elected
on a partisan ballot and it was too compromising to the judges. He
explained that they came up with a periodic retention and election
system. He asked the Committee if it has worked. He assured the
Committee that the judges were aware of the accountability that was
built into Article 4 of the Constitution of the State of Alaska.
He said that his impression was that the system was working. He
urged that they not change it if it was working. He said that sure
over 20 or 30 years they would get some bad opinions, but he noted
that the thousands of opinions that stand up under scrutiny were a
service to the system. He opined that if they truncate every term
into a four to six year term they would dilute the voters analysis
of a judges particular record. He pointed out that Alaska was able
to get more information to the voter. He pleaded with the
Committee that the issue was independence versus accountability and
they were dealing with the Constitution of the State of Alaska. He
stressed that they should not change something that was working.
Senator Donley wondered what the debate was in forming our
government.
Judge Rabinowitz recollected that ten years and six years struck
the appropriate balance on undue pressure on judges and the
people's right to exercise a check and accountability on judges.
These were the appropriate time frames. In 1955 this was an
experiment and he noted that the Constitution was still an
experiment. He pointed out that what they had to do in the court
system was gradually come into maturation. He stated that the test
of time has worked. He said that they needed to strike an
appropriate balance between accountability and allowing the judges
to perform their judicial functions.
Co-Chair Donley wondered what the difference was in how society and
laws had evolved since the 1950s. He suggested that it would have
been difficult for the people in the 1950s to have envisioned how
the courts would have evolved.
Judge Rabinowitz commented that this was almost Political Science
101. He explained that they were a passive institution that did
not initiate litigation. He said that they might go four or five
years without seeing a case at the appellate level that had
statewide appeal. With regards to the question of whether the
courts have become more radical he suggested that they take a look
at Marbury (ph) vs. Madison. He explained that out of the three
branches of government the judiciary was the one that was going to
decide what was constitutional and would bind the three branches of
government. He urged that this was going on from the inception of
government and over time it had proven to work. He pointed out
that they had to draft the Constitution in broad terms and they hit
on a brilliant solution. He said that he did not feel it was a
reflection of an activist court. He would not label his colleagues
as activists.
Co-Chair Donley wondered what court changed the standards for
public interest litigation and the professed intent of the court
was to promote more cases coming to them and more involved in
social issues.
Judge Rabinowitz advised that he had never seen any indication over
the years that a justice had a political or philosophical agenda
imposed on the court. Believe it or not they took the cases as
they came and no one dominated the court. He reiterated that the
system was working.
LES GARA, testified via teleconference from Anchorage, expressed
that in 1955 the founding fathers and mothers worked to create as
credible a judiciary as possible. He urged that they came up with
for this nation a model as an impartial judiciary. He said that
they came up with the best system yet. He noted that they
considered what they did and they debated what they did and they
decided that reducing the retention terms was a bad idea. He
referred to the idea that the judges currently were more radical.
He pointed out that in the 1950s there was the same cries that
judges were radical.
SFC 01 # 74, Side A 10:55 AM
Mr. Gara noted that the work done in 1955 was good work and agreed
with Judge Rabinowitz that there has been nothing to encourage
changing it now. He urged the Committee to go back and read
through the constitutional debates.
Co-Chair Kelly frustrated about some of the testimony that the
deference to the constitutional delegates of 1955 that the same
people say that the Constitution was a living document. Ignoring
the fact that they put for us a method of changing the
constitution. He pointed out that the delegates in 1955 probably
never imaged that the courts would be taking the kind of liberties
that they are taking currently. Doubt that they ever imagined that
the courts would be taking the kind of freedoms that they have been
taking. The right of appropriation belongs to the legislature.
Only convenient when it suits their purposes.
Bruce Weyrauch, President, Alaska Bar Association, believed that an
independent form of judiciary is critical to the government. The
more the political process moves the retention level down the less
they could provide the clients in the private sector.
[Heard and Held]
AT EASE 10:58 AM/10:59 AM
HOUSE BILL NO. 72 am
"An Act relating to an assistant adjutant general for space and
missile defense in the Department of Military and Veterans'
Affairs."
Co-Chair Kelly pointed out that it was a state position using
federal funds.
CARROL CAROL, Department of Military and Veterans Affairs,
explained that a position of this kind would give Alaska forefront
in the decision making process and the ability to hire someone from
Alaska. She agreed that it was completely federally funded.
Co-Chair Donley wondered if she had any objection to a 5-year
sunset on the position.
Ms. Carol did not have an objection, but believed that five years
would be an appropriate time.
Co-Chair Donley noted that five years was a reasonable amount of
time.
Co-Chair Kelly asked Co-Chair Donley if he wanted to propose a
conceptual amendment.
Co-Chair Donley moved a conceptual amendment to add a five-sunset
provision to the position.
There was no objection and the conceptual amendment #1 was adopted.
Senator Wilken made a motion to report HB 72, 22-GH1055\A.a, as
amended, from Committee.
Senator Olson wondered if the employee would fill a state position.
Ms. Carol responded correct.
Senator Olson wondered if there would be other state employees in
addition.
Ms. Carol replied no.
Senator Leman wondered if there was any need to have a more
immediate effective date.
Ms. Carol that would be a positive amendment.
Senator Wilken removed his motion to report bill from Committee.
Senator Leman moved a conceptual amendment for an immediate
effective date.
Co-Chair Kelly asked if there was any objection.
There was no objection and conceptual amendment #2 was adopted.
Senator Wilken made a motion to report HB 72, 22-GH1055\A.a, as
amended, from Committee with attached fiscal note.
There was no objection and the bill was reported from Committee.
ADJOURNMENT
Co-Chair Pete Kelly adjourned the meeting at 11:08 AM.
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