Legislature(2021 - 2022)BUTROVICH 205
04/19/2021 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB15 | |
| SB23 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 15 | TELECONFERENCED | |
| + | SB 23 | TELECONFERENCED | |
| += | SB 122 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 23-INITIATIVE SEVERABILITY
1:47:05 PM
CHAIR HOLLAND reconvened the committee and announced the
consideration of SENATE BILL NO. 23, "An Act relating to
proposing and enacting laws by initiative."
[This was the first hearing on SB 23.]
1:47:32 PM
DIRK CRAFT, Staff, Senator Josh Revak, Alaska State Legislature,
Juneau, Alaska, presented SB 23 on behalf of the sponsor,
Senator Josh Revak. He read the sponsor statement
[Original punctuation provided]:
SB 23 seeks to ensure ballot initiative language that
appears before voters at the ballot box is the same as
the language circulated during the signature-gathering
phase and to restore the legislature's important role
in the initiative process.
Alaska's constitution details a very important right
of our residents - the right to enact legislation
through the voter initiative process. The legislature
also has the right to enact legislation substantially
the same as the proposed initiative thus removing it
from the ballot.
The proposed ballot initiative language must be
submitted to the State of Alaska for review. The
Alaska Department of Law reviews the proposed language
then provides the Lieutenant Governor a recommendation
whether to certify or deny the language.
The Lieutenant Governors certification is a key step
in the initiative process. Only once certification
happens will the state print petition booklets for
gathering voter signatures. The petitioner then
circulates the booklets to gather signatures and
submits those to the state for verification. Once
signatures are verified, an initiative can be prepared
for the ballot.
Per our constitution, some issues are off-limits for
ballot initiatives and initiatives can only cover one
subject. But while a cursory legal review of language
occurs before the Lieutenant Governor's certification,
it has sometimes been the case that further review
finds constitutional concerns with proposed language.
In those cases, a party can file a lawsuit to force
the issue through the court system. This can happen
simultaneous to the circulation of signature booklets.
Under current law, if a court determines that language
in a proposed initiative is unconstitutional and/or
severed, an amended version of the language can appear
before voters. This results in voters seeing a
different initiative than the one they supported with
their signature. Furthermore, if the courts
revise/sever the language after the legislative review
process, they deny the legislature its right to review
the initiative as revised. The net effect of a court's
severance is that an initiative can move forward to
the voters that is substantially different than the
initial version reviewed by the legislature.
SB 23 would rectify this situation. Under this bill,
if a court determines that language in a proposed
initiative is unconstitutional or severed, the
Lieutenant Governor must reject the entire initiative
petition and prohibit it from appearing on the ballot.
Voters should be assured that language on the ballot
has not changed from the language in the petition
booklets supported with voter signatures and further,
restores the legislature's right to review and enact
substantially similar legislation to stop an
initiative from moving forward.
I respectfully request your support for SB 23.
1:50:05 PM
CHAIR HOLLAND asked if there were any differences between SB 23
and Senate Bill 80, proposed by the late Senator Chris Birch
during the last legislature.
MR. CRAFT responded that there were no changes. He pointed out
that a Legislative Legal Services opinion raised some issues
during a Senate State Affair Committee hearing. He offered to
provide a copy to members.
1:50:42 PM
SENATOR HUGHES asked him to describe the legal issues.
MR. CRAFT said first, the legislature imposes a rule on the
initiative process that it does not impose on itself, which may
be in violation of Art. XI, Sec. 7. He said that was the chief
concern in the legal opinion. Further, Art. XI, Sec. 4, provides
the legislature with the right to review and enact substantially
similar legislation. The framers of the Alaska Constitution did
not create a direct initiative in the constitution. Instead, the
framers envisioned the legislature would provide the policy
review prior to an initiative being placed on the ballot. He
related his understanding that many cases were severed after the
legislature held its review, thereby going around that review
process. The legislature may have supported the language at the
time of the review. If the language changed from when voters
signed a petition, the voters might be voting for the initial
initiative language rather than the final version.
1:52:51 PM
SENATOR KIEHL commented that the Art. XII, Sec. 11 question is a
problem for the bill. However, he is sympathetic to the concern
that voters sign one thing only to find out that something else
is placed on the ballot. It is a material difference from how
the legislature enacts bills. Bills must pass both bodies in
identical language. He asked whether the sponsor had considered
requiring an earlier review of the language before an initiative
sponsor invested substantial funds into the process. He wondered
if the legal review could happen at an earlier point.
1:54:11 PM
MR. CRAFT responded that the sponsor has researched how other
states conduct their initiatives. He acknowledged that part of
the issue is that there could be a knowing deception, a bait and
switch. He highlighted the previous committee's questions,
including how many cases were severed, which was about five
initiatives since the 1980s. Only two cases were severed after
the legal review process. In 1988, in the McAlpine v. University
of Alaska case, after two years of budget cuts to consolidate
administrative costs, an initiative was proposed to create a
community college system. The initiative included a real
property transfer from the University of Alaska (UA) to the
community colleges. People signed the petitions and the
legislature reviewed them, but the courts later ruled that the
transfer constituted an appropriation. One reason for SB 23 was
to address the issue raised in McAlpine v. University of Alaska,
where people signed the petitions to allow the transfer of
property, not just to create a community college system. He
suggested that there might be another way to address the issue,
perhaps by modeling how other states have addressed this issue.
The sponsor has contacted the National Council of State
Legislatures (NCSL) for feedback.
1:56:37 PM
SENATOR SHOWER stated one issue is that the timing of challenges
is unpredictable. For example, challenges could arise after the
legislature's review of an initiative.
MR. CRAFT answered yes. The challenge will bypass an important
legislative check if the challenge is filed after the
legislative review.
1:57:44 PM
SENATOR MYERS referred to the Alaska Constitution, Art. 12, Sec.
11, which read:
Unless clearly inapplicable, the law-making powers
assigned to the legislature may be exercised by the
people through the initiative, subject to the
limitations of Article XI.
SENATOR MYERS offered his view that the analogy in terms of
severability is whether an initiative may be amended. The
legislature uses the amendment process. However, allowing the
courts to effectively sever a portion of the initiative
effectively allows the courts to amend the initiative. However,
there is no provision for the people to amend the initiative
since they can only vote to approve or reject the initiatives.
He referred to the language "unless clearly inapplicable". An
amendment process would be clearly inapplicable in a ballot
initiative. If the court system severs the language, it
effectively exercises the law-making powers assigned to the
legislature. He offered his view that SB 23 does not provide an
effective constitutional challenge unless the legal memo
identifies something.
1:59:32 PM
CHAIR HOLLAND said he would like the committee to have an
opportunity to review the legal opinion.
[SB 23 was held in committee.]
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