Legislature(2005 - 2006)BELTZ 211
02/22/2005 03:30 PM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB39 | |
| SB95 | |
| SB104 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 39 | TELECONFERENCED | |
| *+ | SB 95 | TELECONFERENCED | |
| *+ | SB 104 | TELECONFERENCED | |
SB 39-BALLOT PROPOSITIONS AND TITLES
CHAIR THERRIAULT announced SB 39, sponsored by Senator Elton, to
be the first order of business. He noted the blank committee
substitute (CS) and asked the sponsor which version he would
speak to.
SENATOR KIM ELTON, prime sponsor, replied he would speak to the
blank CS and motioned to adopt \F version SB 39 as the working
document. There being no objection, it was so ordered.
3:49:32 PM
Last year, he explained, more time was spent talking about the
specific language describing a few ballot initiatives than was
spent on the underlying policy. SB 39 is an effort to get beyond
that and de-politicize the process through the creation of a
five member advisory panel.
The lieutenant governor would appoint two proponents of the
initiative or referenda and two opponents. The lieutenant
governor would also appoint a fifth and neutral member from a
slate that was prepared by the Chief Justice of the Supreme
Court. With help from state attorneys, the committee would
prepare the impartial ballot title and proposition. In addition,
timelines would be established so that deadlines that are
inherent in any initiative process don't become an issue
The constitution is clear that the lieutenant governor will
prepare the ballot language so nothing in SB 39 forces him or
her to use the language the panel develops. It does, however,
provide that if different language is used he or she would
outline why the language is different in the pamphlet that is
sent to all Alaska voters.
He stressed that the genesis of the bill goes back beyond the
previous election to when he was the chief policy advisor to
former Lieutenant Governor Terry Miller more than two decades
ago.
I can tell you that the most difficult issues that
were dealt with in that lieutenant governor's office -
and I suspect in each of the subsequent lieutenant
governor's office - is how you do the ballot language
because the automatic assumption of voters is that if
the ballot language is coming from an elected official
who is elected on a partisan basis - automatically
people have filters that go up. Especially the people
who may be behind the initiatives - and it is very
difficult to get beyond this. This is a way, I think,
that helps lieutenant governors because it can de-
politicize that ballot language issue.
CHAIR THERRIAULT noted that the court likes to maintain a bright
line so he was curious whether any discussion had taken place
regarding the court participating in what could be the swing
vote on language it might ultimately pass judgment on.
SENATOR ELTON replied he hadn't had any direct contact, but the
model is used in other instances such as the Legislative Ethics
Committee. Certainly the court wouldn't want to select a
proponent or an opponent, but he thought the court would want to
avoid "any suggestion of bias that would kick the work on
drafting ballot language into their system."
CHAIR THERRIAULT referenced the Legislative Ethics Committee and
said the court has made it clear that it wouldn't act as a super
parliamentarian and interject itself into the operation of a
separate branch of government. A better example, he suggested,
would be re-districting. Those plans always end up in the court
system, he said.
SENATOR ELTON replied it's a close and interesting question and
he thought the court would see it as a balance. If suggesting a
slate of potential advisory panel candidates reduces the
possibility of the court ending up with the ballot language
issue in their laps, the court would probably view that effort
as a savings of time and litigation costs.
He said he wanted to correct a part of the sponsor statement
related to cost of printing last year. Media reports indicated
the cost of ballot printing was about $300,000, but the costs
were actually in the neighborhood of $240,000 to $245,000.
SENATOR THOMAS WAGONER said he understood the intent, but it
comes down to the fact that the lieutenant governor could ignore
statute and proceed with his or her own language anyway.
SENATOR ELTON agreed the constitution, which grants final
authority to the lieutenant governor, trumps statute. However,
SB 39 sets up a process to create ballot language and in the
future he suspects lieutenant governors will be thankful that
the process is not seen through a partisan filter. There's a
strong possibility that the lieutenant governor will trump the
language developed by the advisory panel at some point in the
future, but that probably won't happen often.
3:58:36 PM
SENATOR CHARLIE HUGGINS asked if it means a separate committee
for each initiative.
SENATOR ELTON replied there would be potential for multiple
committees.
SENATOR HUGGINS suggested this could be an administrative
nightmare and that he's sure that Lieutenant Governor Leman
learned a great deal during this last election cycle. Sometimes
corrective action is more evil than what transpired, he said,
and any time the court becomes involved it opens Pandora's box.
SENATOR ELTON said his brief response is that there is certainly
an associated learning curve and most elected officials learn
from experience. More than likely the present Lieutenant
Governor Leman is more sensitive to the issues than he may have
been two years ago, but future lieutenant governors will also be
faced with a learning curve.
"The worst thing that could possibly happen is for arguments
about ballot language to get into the judicial system. That, I
think, is a bigger problem than having a judicial officer
appoint one of five people to try and prevent that." It
shouldn't be viewed as constraining the behavior of the
lieutenant governor because the constitution doesn't allow that,
but this approach to ballot language can constrain the behavior
of initiative sponsors. It would make it more difficult for
initiative sponsors to go to court and argue about ballot
language that was approved by a non-partisan and balanced
committee.
SENATOR HUGGINS commented he isn't warm to the idea of
committees looking after the lieutenant governor.
CHAIR THERRIAULT read page 2, lines 5,6, and 7 and said it means
the lieutenant governor may choose to make adjustments that are
allowed by the statute. It doesn't mean that he or she may
ignore the statute. He noted the language appears on that page
as part of AS 15.45.180 then at the top of page 3 as part of AS
15.45.410 and on the bottom of page 3 as part of AS 15.50.010.
He questioned why the language is repeated in statute three
times.
4:03:12 PM
SENATOR ELTON replied he believes it was an effort to make the
different components of the election statutes reflect the same
notion. He asked his staff to confirm that.
JESSE KIEHL, staff to Senator Elton, elaborated explaining the
first reference amends the initiative laws, the second the
referendum laws and the third reference amends the laws on
constitutional amendments.
4:05:12 PM
CHAIR THERRIAULT asked whether he had anything else to add.
MR. KIEHL replied Senator Elton addressed all the primary points
but a point to emphasize further is clear and early deadlines
for work done on ballot titles and propositions. "While the bill
is intended to reduce the likelihood of lawsuits, certainly if
something should ... go to court, there is adequate time for the
courts to address the question."
CHAIR THERRIAULT asked about the suggested date changes.
SENATOR ELTON said he would ask Mr. Keihl to explain that and
members could reference the document on deadlines found in the
packets.
MR. KIEHL explained the original version of the bill created
deadlines that counted backward 70 and 80 days from Election Day
to give the Division of Elections time to print ballots even if
there were a court challenge. During review they found that
existing statute for constitutional amendments says that within
30 days after a legislative session in which a constitutional
amendment is proposed ends, or 30 days after a constitutional
convention in which an amendment is proposed ends, the
lieutenant governor must prepare the title. The CS says, "30
days after the legislature last had a crack at it, the committee
must meet and do its work and the lieutenant governor approve."
The timeframe for referenda is shorter so the timeline for the
ballot title must be shortened to get everything to the Division
of Elections in time to print the ballot. That limit is not
later than 21 days after the date the petition is filed. Instead
of the 10-day timeframe the lieutenant governor is given to make
any necessary changes for initiatives and constitutional
amendments, the lieutenant governor is given 5 days for
referenda. The reasoning is that when referenda can be voted on
in the same year that the signature is filed, the timeframe is
tight.
4:09:55 PM
CHAIR THERRIAULT noted a number of people wanted to testify.
SENATOR ELTON mentioned the two zero fiscal notes.
CHAIR THERRIAULT acknowledged the fiscal notes and called on Mr.
Feldman from an off net site.
4:11:17 PM
JEFF FELDMAN advised he was part of the recent litigation
involving the ballot language and when he first heard of SB 39
he wasn't sure whether it was a good fix to the problem.
Ultimately he came to view the measure as non-partisan
legislation.
He made the point that this is a recurring issue in the state
and that a number of lieutenant governors have been defendants
in lawsuits brought because of action they may have taken.
Certainly, Lieutenant Governor Leman's situation last year was
not unique and most lieutenant governors have had to struggle
with this issue.
He suggested two issues were worth consideration. First, the
present system is expensive and isn't limited to reprinting
costs. Litigation expenses are likely to be in the high six
figures. The second point is that the current system makes
everyone associated with the process look bad.
Referencing the comment made about not wanting a committee to
make decisions about ballot language, he said that is the
current system. The lieutenant governor doesn't appoint the
committee; "ultimately five people wearing black robes got to
decide what the language had to be."
Although committees don't move as fast as the individual, they
do move more efficiently and less expensively than the process
used last year, he asserted. This process would also give any
lieutenant governor help and guidance and make it more likely
that language that is settled upon would be impartial, accurate,
and the product of both sides of an issue. Currently, once the
lieutenant governor decides on the language, proponents of the
initiative have no opportunity for review ahead of time and no
opportunity to communicate with the lieutenant governor as to
whether they like or don't like it. This suggested fix is worth
serious consideration, he concluded.
SENATOR WAGONER noted that legislation passed last year relating
to the initiative process should slow the number of initiatives
going to ballot, but he didn't think this measure would keep the
initiative process out of the court system. "When you've got two
sides arguing the issue, I think you're going to end in court 90
percent of the time anyway," he remarked.
4:18:44 PM
CHAIR THERRIAULT asked Joe Geldhof to come forward.
JOE GELDHOF, Juneau attorney, said he was testifying on behalf
of himself and that he does have some initiative experience. He
urged members to develop a CS because there are some meaningful
points that would be useful to the lieutenant governor in the
initiative process.
He found Lieutenant Governor Leman's office to be completely
professional when he dealt with it on the cruise ship
initiative. Nonetheless, providing both proponents and opponents
an opportunity to preview the language to be selected, as
proposed in SB 39, could give the lieutenant governor the
ability to receive feedback quickly and to gain a feel for how
the language might be received. Otherwise you end up with
language that comes through the lieutenant governor's office,
but frequently from the attorney general's office and "It's
often cobbled together in a hasty fashion without full regard to
what's really going on."
Finally, he urged members to consider a CS that has a short
review process so an opponent and a proponent vet the lieutenant
governor and the attorney general summary before the booklets
are printed and released to the public. That might avoid the
temptation to litigate after the booklets are collected and
provide opportunity for a better end product.
4:22:38 PM
SENATOR HUGGINS asserted that unfortunately, "ballot initiatives
all too often are hyperizing and polarizing by their very
nature."
MR. GELDHOFF replied he really isn't a fan of the initiative
process and he views initiatives as the result of legislative
gridlock.
SENATOR HUGGINS suggested this could result in greater
protraction.
MR. GELDHOF replied it could happen that way but, "give the
lieutenant governor at least a limited chance to have a little
input from the people out there hammering on it.... give the
lieutenant governor a shot of what's right and wrong with the
language."
4:25:40 PM
CHAIR THERRIAULT agreed that in the past people have gotten
thousands of signatures on language to laws that were
structurally flawed. Sometimes the petitioners knew it was
flawed and suggested they would fix it after the fact. He said
it seems as though the argument is centered more on the language
that describes the law than the language that is proposed for
the statute books. When you look at the proposed summary
statement that isn't the law itself, he said.
MR. GELDHOFF agreed then said that the public really has an
amazing capacity to know what's going on. The Legislature has an
obligation to make it as clear as possible and then let the
public do what they're going to do. "Let people like Mr. Feldman
come up with a better work product."
CHAIR THERRIAULT said he was thinking about the property tax
issue from three or four years ago. The proposed law was flawed
and didn't work. You could argue about the summary statement on
the booklet and you could argue about the summary on the
ballots, but the process doesn't provide for a check on the
proposed law itself to make sure it works.
MR. GELDHOFF replied initiatives are just the direct enactment
of legislation so the same standards should be used that you as
the presiding officer of a committee would consider.
CHAIR THERRIAULT said they don't always get it right as a
committee, but they have the committee process, Department of
Law attorneys, legislative attorneys, Majority members, and
Minority members. Each provides a set of eyes coming from a
different perspective and looking for mistakes. By contrast what
is approved for initiatives has frequently been reviewed from
just one perspective and the summary may not be accurate.
4:29:55 PM
SENATOR ELTON said perhaps the committee should consider a CS to
include the summary language for petitions. With regard to the
property tax initiative, he said it wasn't an issue of what was
said on the summary or what would have appeared on the ballot,
but it could have become an issue because there was a structural
flaw to the law they were proposing. A committee could have
addressed the issue by saying, "This doesn't do what it says it
does."
CHAIR THERRIAULT asked Annette Kreitzer to come forward.
ANNITTE KREITZER, chief of staff for Lieutenant Governor Loren
Leman, said she would speak in generalities since she hadn't
seen the sponsor statement or the proposed CS.
She said she distributed pages from Lieutenant Governor Leman's
web site titled "Understanding Initiatives" because it includes
timelines of action on initiatives. Furthermore:
Lieutenant Governor Leman believes the initiative
process is an important part of Alaska's political
system. It allows Alaskans direct access to writing
and approving certain laws without going through the
legislative process.
SB 39 isn't necessary. Any lieutenant governor walks a
fine line between proponents of an initiative and the
opponents. As far as my experience goes, we've
received comments on both sides of almost every
initiative. The lieutenant governor takes input from
many including the Department of Law. We don't operate
in a vacuum.
Under SB 39, the lieutenant governor still can change
the committee's recommendation and I'm sure, as others
have said before me, that that's in the bill because
to do otherwise would likely render the bill
unconstitutional.
MS. KREITZER took issue with Mr. Feldman's statement that
opponents and proponents do not have an opportunity to comment.
The initiative he was referencing came at the same time that
legislation was being passed so Lieutenant Governor Leman was
very involved. When he was asked about that legislation he said
it was substantially similar to the proposed initiative. Three
days prior to printing the special advance ballots the court
ruled that the initiative would have to go on the ballot.
In terms of timing she made the point that if you're vulnerable
to a lawsuit at any point you wouldn't be able to meet the
timelines set forth in the bill. "The bias is in the eye of the
beholder. Proponents don't think we're doing enough to advance
their initiative and opponents don't think we're doing enough to
outline perceived flaws in an initiative."
Current law allows judicial review and judicial review would
also be available under SB 39. The proposed five-member
committee wouldn't have fewer biases than an elected lieutenant
governor and an appointed attorney general, she concluded.
4:34:52 PM
CHAIR THERRIAULT referenced the fiscal notes and asked Senator
Elton who would pay the committee expenses as far as travel and
per diem.
SENATOR ELTON replied he anticipates some travel costs because
it's likely that the committee would have to meet face-to-face
at least initially. He suggested that little investment up front
would save a lot of money later on.
CHAIR THERRIAULT noted the fiscal notes from the Division of
Elections and the Department of Law and asked if he envisions
that the expenses would be covered from the lieutenant
governor's budget.
SENATOR ELTON replied it could happen that way. During an
election cycle a lot of the lieutenant governor's staff time is
used on issues such as ballot language, temporary hiring, and
voter pamphlet contracting. He anticipates that it would be part
of the biannual cycle for budgeting for elections.
CHAIR THERRIAULT questioned whether they would have to plan for
additional costs.
SENATOR ELTON replied expenses would probably be slightly
higher. Expenses would depend on the number of initiatives and
perhaps the volatility of some of the initiatives. In conclusion
he emphasized that it will be easy to identify costs to
accomplish SB 39 but impossible to identify the accrued savings.
There was no further testimony or questions.
CHAIR THERRIAULT announced he would hold SB 39 in committee.
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