Legislature(2011 - 2012)CAPITOL 120
04/02/2012 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB347 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 347 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 347 - USE OF MUNICIPAL FUNDS FOR INITIATIVES
1:05:15 PM
VICE CHAIR THOMPSON announced that the only order of business
would be HOUSE BILL NO. 347, "An Act prohibiting the use of
municipal funds to support or oppose an initiative proposal to
circulate a petition for a ballot initiative, or to influence
the outcome of an election concerning a ballot initiative,
without approval by municipal voters at an election."
1:06:15 PM
ANNA LATHAM, Staff, Representative Kurt Olson, Alaska State
Legislature, explained on behalf of the sponsor, Representative
Olson, that HB 347 would prohibit the use of municipal funds
[for ballot initiatives] without voter approval. Currently,
municipalities can spend [public] funds to influence the outcome
of a ballot initiative, and research indicates that this
occurred in 2011, when three municipalities spent [a combined
total of $34,000] in municipal funds to support a ballot
initiative. Though voters may be in favor of a particular
ballot initiative, they may not necessarily be in favor of
municipal funds being allocated to support or oppose it. Under
HB 347, she ventured, voters would be made aware of, and be
allowed to weigh in on, how their municipality is proposing to
allocate public funds to address ballot initiatives. Research
also indicates that at least 14 other states prohibit the use of
public funds to support or oppose an initiative, and that HB 347
is constitutional in that governmental entities, including
municipalities, do not have independent First Amendment rights.
House Bill 347 is intended to keep the ballot initiative process
fair, and to ensure that the priorities of the municipality are
the same as its citizens', she said in conclusion.
1:10:10 PM
KATHIE WASSERMAN, Executive Director, Alaska Municipal League
(AML), relayed that the AML adamantly opposes HB 347 because it
would stifle the municipalities' ability to take part in the
initiative process and would substantially increase their costs
- in some instances by as much as $350,000 - by requiring a
special election. She offered her hope that should the federal
government ever attempt to impose a similar limitation on the
State of Alaska, that Alaska's legislators would oppose it. In
conclusion, she characterized HB 347 as a terrible overreach of
government, and offered her hope that it would not pass from
committee. In response to comments, she said that under current
law, before a municipality can spend public funds to address a
ballot initiative, the municipality must properly notice and
hold two public hearings on the issue; in other words, there is
already plenty of opportunity for taxpayers to weigh in on
whether a municipality should appropriate public funds for such
a purpose, and although HB 347 would provide them with
additional opportunity, it would come at great cost. In
response to an argument that [without the bill,] a municipality
could spend a taxpayer's money on something in direct opposition
to the wishes of the taxpayer, she pointed out that it will
never be the case that all taxpayers are going to agree with
everything their municipality does or supports or spends money
on even if they are given additional opportunity to weigh in on
the issue.
1:16:46 PM
REPRESENTATIVE KURT OLSON, Alaska State Legislature, sponsor,
explained that the intent of HB 347 is to address the fact that
some municipalities - in addressing ballot initiatives - use
paid signature gatherers instead of volunteers, and it's the
fact that public funds are being used for this purpose that
causes him concern. In conclusion, he characterized HB 347 as
reasonable in comparison to the laws of some other states.
REPRESENTATIVE GRUENBERG referred to a memorandum in members'
packets dated January 19, 2012, from Legislative Legal and
Research Services, and pointed out that it says that the U.S.
Supreme Court, in addressing a Colorado statute in Meyer v.
Grant, has found that initiative petition circulation is core
political speech entitled to substantial First Amendment
protection and that states may not burden the exercise of the
right to petition through the use of the initiative by
prohibiting the payment of petition circulators. If the purpose
- or a purpose - of HB 347 is to prohibit that type of activity,
then there's a good chance, he predicted, that the court would
find HB 347 to be unconstitutional. In response to comments, he
referred to another memorandum from Legislative Legal and
Research Services dated April 2, 2012, and pointed out that
although in it the drafter has expressed the legal opinion that
HB 347 is constitutional under the free speech clauses of both
the U.S. Constitution and the Alaska State Constitution, the
drafter has not included [sufficient substantiating citation]
pertaining specifically to the Alaska State Constitution, which
the Alaska Supreme Court has held on several occasions as
providing greater protections than the U.S. Constitution in
terms of free speech and other core rights; it is therefore
still unclear whether municipalities, specifically under the
Alaska State Constitution, would be found to enjoy a First
Amendment right under the circumstances outlined in the bill.
MS. LATHAM explained that in Meyer, the court was addressing the
right of an initiative sponsor to use paid signature gatherers,
and offered her understanding that a municipality cannot be an
initiative sponsor.
REPRESENTATIVE GRUENBERG reiterated his belief that the issue of
whether the bill is constitutional has not yet been sufficiently
addressed in the context of the Alaska State Constitution's
greater protections, under which municipalities, as
representatives of the people, may indeed have very significant
rights of free speech.
MS. LATHAM pointed out that a memorandum in members' packets
from the Department of Law (DOL) dated March 27, 2012, states in
part:
Governmental entities - including municipalities -
have no independent First Amendment rights.
Municipalities are not treated like individual
citizens for purposes of constitutional inquiries, and
the legislature is allowed to restrict municipal
appropriates for speech related activities.
VICE CHAIR THOMPSON noted that that particular memorandum does
include [substantiating citations].
REPRESENTATIVE GRUENBERG offered his understanding, though, that
none of those citations address Alaska cases or the Alaska State
Constitution specifically.
The committee took an at-ease from 1:32 p.m. to 1:33 p.m.
1:33:57 PM
SHIRLEY MARQUARDT, Mayor, City of Unalaska; President, Alaska
Municipal League (AML), said it seems unreasonable to require
municipalities to spend time and money on a special election
before they can disseminate critical information about a ballot
initiative to their communities, adding that she doesn't
understand the need for HB 347, doesn't see the purported
problem it's intended to fix.
VICE CHAIR THOMPSON, after ascertaining that no one else wished
to testify, closed public testimony on HB 347.
1:39:16 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1,
labeled 27-LS1396\A.3, Bullard, 4/2/12, which read:
Page 2, line 2, following "election":
Insert "paid for by the state"
REPRESENTATIVE GRUENBERG explained that Amendment 1 - by
amending HB 347's proposed new AS 15.13.145(e) - would address
the AML's concern about increased costs by requiring the state
to pay for a municipality's special election.
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG proffered that without Amendment 1,
HB 347 becomes an unfunded mandate for municipalities.
REPRESENTATIVE HOLMES observed that Amendment 1 contains a
drafting error and should instead be amending line 4 of page 2.
REPRESENTATIVE GRUENBERG concurred, and [made a motion to] amend
Amendment 1 to that effect. There being no objection,
Amendment 1 was so amended.
VICE CHAIR THOMPSON, remarking on the cost of holding a special
election, surmised that adoption of Amendment 1, as amended,
would result in a change in HB 347's fiscal notes.
REPRESENTATIVE PRUITT argued that nothing in HB 347 requires a
municipality to hold a special election; instead the bill merely
stipulates that before a municipality can spend public funds to
address a ballot initiative, it must obtain voter approval of
the proposed expenditure.
REPRESENTATIVE GRUENBERG opined that as currently written,
HB 347 could make it extremely difficult for municipalities to
address ballot initiatives - even those that could severely
impact the municipalities themselves - and pointed out that the
question raised is who would pay for the special election
necessary to obtain the required voter approval. Without
Amendment 1, the special election costs would be borne by the
municipalities themselves rather than the state.
REPRESENTATIVE OLSON agreed, and indicated disapproval of
Amendment 1, as amended.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 1, as amended.
Representatives Lynn, Keller, and Thompson voted against it.
Therefore, Amendment 1, as amended, failed by a vote of 2-3.
1:55:01 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2,
labeled 27-LS1396\A.9, Bullard, 4/2/12, which read:
Page 1, line 1:
Delete "prohibiting"
Insert "relating to"
Page 1, line 2, following "proposal":
Insert "or"
Page 1, lines 2 - 4:
Delete ", or to influence the outcome of an
election concerning a ballot initiative, without
approval by municipal voters at an election"
Page 1, line 9:
Delete "by municipal voters"
Page 2, line 1:
Delete "AS 29.26.110,"
Insert "AS 29.26.110 or"
Page 2, lines 1 - 3:
Delete ", or, subject to (b) of this section, to
influence the outcome of an election concerning a
ballot initiative"
Page 2, lines 3 - 4:
Delete "use of the funds for that purpose has
been approved by municipal voters at an election"
Insert "funds for that purpose have been
specifically appropriated for that purpose by a
municipal ordinance"
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG explained that existing AS 15.13.145(b)
in part stipulates that a municipality may use [public] funds to
influence the outcome of an election concerning a ballot
proposition or question if the funds were specifically
appropriated for that purpose by a municipal ordinance; and
indicated that Amendment 2 would provide a similar stipulation
for ballot initiatives in HB 347's proposed new AS 15.13.145(e).
REPRESENTATIVE LYNN also objected.
The committee took an at-ease from 1:58 p.m. to 2:00 p.m.
2:03:56 PM
ALPHEUS BULLARD, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency (LAA), as the drafter, in response to comments and
questions, relayed that the aforementioned existing
AS 15.13.145(b) already stipulates that any [municipal] funds
used to influence the outcome of an election concerning a ballot
initiative must be appropriated by municipal ordinance, because
the phrase, "ballot proposition or question" as used in that
statute includes ballot initiatives. If Amendment 2 is adopted,
HB 347 would then provide a similar stipulation for funds used
to support or oppose an initiative proposal, and for funds used
to circulate a petition for an initiative. Without Amendment 2,
funds used to influence the outcome of an election concerning a
ballot initiative would first have to be appropriated by
municipal ordinance and then be approved by municipal voters at
an election, and funds used either to support or oppose an
initiative proposal, or to circulate a petition for an
initiative, would only need to be approved by the voters.
REPRESENTATIVE OLSON expressed disfavor with Amendment 2.
REPRESENTATIVE KELLER expressed a preference for retaining the
bill as written.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 2. Representatives Thompson,
Lynn, and Keller voted against it. Therefore, Amendment 2
failed by a vote of 2-3.
The committee took an at-ease from 2:09 p.m. to 2:16 p.m.
2:16:13 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 3,
labeled 27-LS1396\A.4, Bullard, 4/2/12, which read:
Page 2, line 4, following "election.":
Insert "However, if the municipality fails to
have the use of funds for that purpose approved by
municipal voters, or if the result of the election to
have the use of funds approved by municipal voters is
not certified before the date of the election at which
the initiative will be on the ballot, the results of
the election on the initiative may not be invalidated
on the basis of failure of the municipality to comply
with this subsection."
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG explained that Amendment 3 would add
language to the end of HB 347's proposed new AS 15.13.145(e)
stipulating [that a lack of timely voter approval for the use of
municipal funds] won't invalidate the election results on the
ballot initiative itself. He offered his belief that adoption
of Amendment 3 would preclude any argument that the election
results on a ballot initiative must be invalidated because the
provisions of proposed new subsection (e) weren't complied with.
REPRESENTATIVE KELLER questioned what the penalty would be for
violating the bill.
REPRESENTATIVE HOLMES, in response to comments, offered her
understanding that under Amendment 3, the failure of a
municipality to comply with the provisions of the bill won't
invalidate a ballot initiative's election results.
REPRESENTATIVE GRUENBERG offered his understanding that the bill
applies to municipal ballot initiatives as well as to statewide
ballot initiatives.
REPRESENTATIVE OLSON shared his belief that Amendment 3 isn't
needed.
REPRESENTATIVE PRUITT opined that noncompliance with the bill
should result in the election results on a ballot initiative
being invalidated, and expressed disfavor with Amendment 3.
VICE CHAIR THOMPSON expressed concern that the election results
on a ballot initiative could be invalidated if using public
funds to provide the public with nonpartisan information about a
ballot proposition or question - as allowed under existing AS
15.13.145(c)(2) - is misconstrued as using public funds to
influence the outcome of an election concerning a ballot
initiative.
REPRESENTATIVE GRUENBERG, in response to a question, relayed
that in offering Amendment 3, he was attempting to eliminate the
possibility that noncompliance with the bill would invalidate a
ballot initiative's election results.
A roll call vote was taken. Representatives Gruenberg and
Holmes voted in favor of Amendment 3. Representatives Pruitt,
Thompson, Lynn, and Keller voted against it. Therefore,
Amendment 3 failed by a vote of 2-4.
2:27:14 PM
REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 4,
labeled 27-LS1396\A.6, Bullard, 4/2/12, which read:
Page 1, line 4, following "election":
Insert "; and relating to the liability of
municipal officials"
Page 1, line 12:
Delete "a new subsection"
Insert "new subsections"
Page 2, following line 4:
Insert a new subsection to read:
"(f) A municipal official may not be held liable
for the failure of a municipality to comply with (e)
of this section."
VICE CHAIR THOMPSON noted that there was objection to the
motion.
REPRESENTATIVE GRUENBERG explained that Amendment 4 would
clarify that municipal officials cannot be held liable for the
failure of a municipality to comply with the provisions of the
bill's proposed new AS 15.13.145(e).
REPRESENTATIVE GRUENBERG then mentioned that perhaps Amendment 4
could be amended such that its protection from liability would
also apply to municipalities themselves.
REPRESENTATIVE OLSON said he didn't see a problem with
Amendment 4, and acknowledged that it would probably clean up
the bill.
VICE CHAIR THOMPSON, in response to comments, noted that
members' packets contain a letter from the City of Homer in
opposition to HB 347.
REPRESENTATIVE OLSON, in response to a question, expressed a
preference for Amendment 4 as currently written.
VICE CHAIR THOMPSON, observing that members had questions about
Amendment 4 for the drafter to address, relayed that Amendment 4
would be set aside.
2:36:23 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 5, a hand-altered version of an amendment labeled 27-
LS1396\A.8, Bullard, 4/2/12, which, after alteration, read:
Page 1, line 4, following "election ":
Insert "; relating to the reporting of certain
expenditures to influence the outcome of an election"
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG explained that Conceptual Amendment 5
would ensure that the title of HB 347 reflects the bill's
proposed changes to AS 15.13.145.
REPRESENTATIVE HOLMES said she didn't see a problem with
Conceptual Amendment 5, surmising that it would just clean up
the title.
REPRESENTATIVE KELLER made a motion to amend Conceptual
Amendment 5 such that the words, "to influence the outcome of an
election" would no longer be added to the title. There being no
objection, Conceptual Amendment 5 was so amended.
MR. BULLARD, in response to comments and questions, indicated
that the language that would be added to the title via
Conceptual Amendment 5, as amended, accurately reflects the
bill's proposed changes to AS 15.13.145, and that he didn't see
any legal problems with it.
REPRESENTATIVE KELLER removed his objection.
VICE CHAIR THOMPSON announced that Conceptual Amendment 5, as
amended, was adopted.
2:43:14 PM
VICE CHAIR THOMPSON turned the committee's attention back to
Amendment 4.
MR. BULLARD, to address members' questions, explained that
although AS 09.65.070 already provides immunity to municipal
officials with regard to certain discretionary duties, official
duties, it's difficult to say how that statute would be
interpreted by the court in the context of a municipal official
who spends municipal funds out of compliance with the bill's
requirements.
REPRESENTATIVE GRUENBERG said he didn't want any such
noncompliance by a municipality to result in a municipal
official being subject to civil or criminal penalties.
REPRESENTATIVE KELLER said he opposes Amendment 4, surmising
that it would remove any responsibility to comply with the bill.
VICE CHAIR THOMPSON offered his belief that Amendment 4 would
defeat the purpose of HB 347.
MR. BULLARD, in response to another question, relayed that a
violation of AS 15.13 would be a class A misdemeanor.
REPRESENTATIVE GRUENBERG withdrew Amendment 4.
2:47:29 PM
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 6,
labeled 27-LS1396\A.5, Bullard, 4/2/12, which read:
Page 1, line 4, following "election":
Insert "; and providing for an effective date"
Page 2, following line 4:
Insert a new bill section to read:
"* Sec. 3. This Act takes effect August 29, 2012."
REPRESENTATIVE KELLER objected.
REPRESENTATIVE GRUENBERG explained that under Amendment 6, the
effective date of the bill would be the day after the upcoming
primary election, and surmised that municipalities could have
difficulty complying with the proposed new law any time sooner
than that.
REPRESENTATIVE OLSON agreed.
REPRESENTATIVE KELLER removed his objection.
VICE CHAIR THOMPSON, after ascertaining that there were no
further objections, announced that Amendment 6 was adopted.
The committee took an at-ease from 2:49 p.m. to 2:50 p.m.
2:50:52 PM
REPRESENTATIVE KELLER moved to report HB 347, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 347(JUD) was
reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB0347A.pdf |
HJUD 4/2/2012 1:00:00 PM |
HB 347 |
| HB 347 Sectional Analysis.pdf |
HJUD 4/2/2012 1:00:00 PM |
HB 347 |
| 05 HB347-DCCED-DCRA-02-24-12.pdf |
HJUD 4/2/2012 1:00:00 PM HSTA 3/22/2012 8:00:00 AM SSTA 4/13/2012 9:00:00 AM |
HB 347 |
| HB 347 Sponsor Statement.pdf |
HJUD 4/2/2012 1:00:00 PM |
HB 347 |
| HB 347 Legislative Research.pdf |
HJUD 4/2/2012 1:00:00 PM |
HB 347 |
| HB 347 City of Homer comments.pdf |
HJUD 4/2/2012 1:00:00 PM SSTA 4/13/2012 9:00:00 AM |
HB 347 |
| HB 347 Dept of Law.pdf |
HJUD 4/2/2012 1:00:00 PM SSTA 4/13/2012 9:00:00 AM |
HB 347 |
| HB 347 Gruenberg memo.pdf |
HJUD 4/2/2012 1:00:00 PM SSTA 4/13/2012 9:00:00 AM |
HB 347 |