Legislature(2019 - 2020)BELTZ 105 (TSBldg)
04/23/2019 06:00 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB12 | |
| SB80 | |
| SB52 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 12 | TELECONFERENCED | |
| += | SJR 9 | TELECONFERENCED | |
| + | SB 80 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 52 | TELECONFERENCED | |
SB 80-INITIATIVE SEVERABILITY
6:27:46 PM
CHAIR HUGHES announced that the next order of business would be
SENATE BILL NO. 80, "An Act relating to proposing and enacting
laws by initiative."
6:28:18 PM
SENATOR CHRIS BIRCH, Alaska State Legislature, Juneau,
paraphrased from the sponsor statement, which read:
Senate Bill 80 - Sponsor Statement "An Act relating to
proposing and enacting laws by initiative."
SB 80 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 Governor's 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 80 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.
6:31:05 PM
SENATOR REINBOLD remarked that she heard this bill in Senate
State Affairs Standing Committee. She is a big supporter of SB
80.
6:31:28 PM
KIM SKIPPER, Staff, Senator Chris Birch, Alaska State
Legislature, Juneau, provided the sectional analysis of SB 80 on
behalf of the sponsor, Senator Chris Birch. She said that this
bill has one section that amends AS 15.45.240. It adds a new
subsection (b), which reads, "The provisions of an initiative
are not severable after being circulated under AS 15.45.110. An
initiative petition may not contain a severability clause. If a
court finds a provision of an initiative petition
unconstitutional during a review under (a) of this section, the
court shall order the lieutenant governor to reject the entire
initiative petition and prohibit the placement of the initiative
on the ballot."
6:32:22 PM
CHAIR HUGHES stated that an initiative initiates new law and a
referendum repeals existing law. She asked whether citizens have
the ability to repeal and reenact something and if that would be
an initiative or if it would be defined as a referendum. She
asked whether this would be needed to extend a referendum.
SENATOR BIRCH said he was unsure. He said he thought it applied
solely to an initiative.
SENATOR MICCICHE said since a referendum only repeals language,
there would be no need to have severability protection.
CHAIR HUGHES asked whether citizens have the ability to do a
repeal and reenactment in the same process.
6:33:46 PM
ERIC FJELSTAD, representing self, Anchorage, stated he is an
attorney with Perkins Coie LLP, but he is testifying on his own
behalf. He said he was involved in Proposition 1 last year.
CHAIR HUGHES wondered if citizens can repeal and reenact new law
in the same process.
MR. FJELSTAD responded that this provision is focused on a very
narrow situation in which citizens are making law and the role
of the legislature in reviewing it. That is unique to
initiatives, he said.
CHAIR HUGHES indicated she was satisfying her curiosity about
the process.
6:35:51 PM
SENATOR MICCICHE said that he supports this bill. He has seen
people "shoot for the moon" and let the courts sort it out. This
would take the pressure away with respect to the intent of the
initiative process. He said that if my name were on it and the
language of the initiative changed, he would want to give his
name a second time. He offered his belief that this would
correct a lot of problems.
CHAIR HUGHES said she also supports SB 80. She said it made her
think about the public trust factor. She said when people sign a
contract, the language of the contract cannot change. We all
know that is not the right thing to do.
6:37:16 PM
SENATOR KIEHL said that a provision like this one seems to
provide an incentive for parties to sue over any and every
initiative. He said that if "you can nick it" or "wound it just
the tiniest bit" the whole thing is off the ballot. He expressed
concern that it might encouraged citizens to be overly
litigious.
SENATOR BIRCH answered that he did not think so. He did not
think it would be a common practice in which the courts would
rewrite an initiative. He said that [Proposition 1] was a long
initiative that was substantially changed by the courts. The
presumption would be that the public members who sign the
initiative would not see significant changes when it shows up in
the ballot.
6:38:27 PM
SENATOR KIEHL said that the courts first severed part of an
initiative in the 1980s [in McAlpine v. University of Alaska].
He asked what has changed in the intervening years.
SENATOR BIRCH offered his belief that initiatives are overly
complex and overreaching. The net effect is that initiatives are
put in front of the public that have not gone through the
deliberative process of law. He said that the assumption is that
when the initiative is initially certified by the lieutenant
governor that it has gone through a legal review and is
appropriate to be in front of the public.
6:39:48 PM
SENATOR KIEHL referred to Article XII, Section 11 of the
Constitution of the State of Alaska issue. He said that the
second sentence reads, "Unless clearly inapplicable, the law-
making powers of the legislature may be exercised by the people
through the initiative, subject to the limitations of Article
XI."
He said that would create an additional bar to the legislature.
This would put additional burdens on the initiative power that
are not imposed on the legislature's law-making power, he said.
SENATOR BIRCH deferred to Mr. Fjelstad.
6:40:38 PM
MR. FJELSTAD answered that with the initiative process, a number
of constitutional provisions are in play. He acknowledged that
constitutional repercussions occur when a change like this
happens. He agreed that the provision Senator Kiehl mentioned is
in play, but on the other side is the constitutional right and
policy obligation of legislature to review an initiative before
it goes to the voters. He said this is apolitical. The framers
of the Constitution of the State of Alaska contemplated the
legislature would be the last stop, with the ability to review
an initiative and to enact something substantially similar if it
chooses to do so. That would stop an initiative, he said. People
have the right to make laws, subject to the legislature bringing
an end to it. The dynamic of the court's severance significantly
changes that, because if the courts severs something like it did
last year with Proposition 1 last year, it became something very
different than what the legislature considered in the first
instance.
He said that it changes the politics. The legislature may review
an initiative and the probability it would enact something
substantially similar to an initiative it does not like is very
low. However, if the court were to sever the things that were
objectionable, it creates a very different piece of legislation
and the probability that it would enact legislation goes way up.
He said that the positioning and the timing of when the
legislature reviews it matters. He said that putting the court
after the legislative review and creating something different is
significant.
SENATOR KIEHL said it seems analogous to the governor's power to
sign a veto. He said that the court retains the ability to sever
afterwards. He said it is the same dynamic. He asked how that
would justify putting an additional restriction on the law-
making power of the people through an initiative.
MR. FJELSTAD said the people have a law-making power and the
ability to make laws. The question is not what the people
propose, which might be to say we want a law that consists of 10
parts, which is fine, rather, it is when the courts are deciding
unilaterally to remove two of 10 parts.
SENATOR KIEHL answered that the people ultimately make that
decision when they vote on the initiative consisting of eight
parts instead of 10.
MR. FJELSTAD agreed that the people get to vote. However, the
legislature could say it was presented with a bill consisting of
10 parts. However, after the legislature ends, if the court
carves out two parts, it means the legislature has not examined
the revised version, which could be a very different bill.
6:45:09 PM
SENATOR BIRCH said he thinks SB 80 has some significant benefit
and consequences with the potential to streamline the process.
6:45:44 PM
SENATOR MICCICHE said the Constitution of the State of Alaska
has different provisions. He said that Title 1 on initiatives
answers several of the questions. He said he has stated his
support. He characterized it as a truth in advertising issue. If
he places his signature on [an initiative], it should be what is
going forward. Otherwise it should come back for another set of
signatures.
SENATOR BIRCH thanked the committee.
6:46:33 PM
CHAIR HUGHES pointed out that legislators can withdraw their
sponsorship on proposed bills if the language in the bill
changes.
[SB 80 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| CSHB 12(JUD) Version E.PDF |
SJUD 4/23/2019 6:00:00 PM |
HB 12 |
| HB012 Sponsor Statement ver E.pdf |
SJUD 4/23/2019 6:00:00 PM |
HB 12 |
| HB012 Sectional ver E.pdf |
SJUD 4/23/2019 6:00:00 PM |
HB 12 |
| HB012 Explantion of Changes ver E.pdf |
SJUD 4/23/2019 6:00:00 PM |
HB 12 |
| HB012 Reference Document CPO Statute and Duration of Order.pdf |
SJUD 4/23/2019 6:00:00 PM |
HB 12 |
| SB 80 Sponsor Statement.pdf |
SJUD 4/23/2019 6:00:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 80 |
| SB 80 Version U.pdf |
SJUD 4/23/2019 6:00:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 80 |
| SB 80 - Fiscal Note - GOV.pdf |
SJUD 4/23/2019 6:00:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 80 |
| SB052 EXPLANATION OF CHANGES 04.22.19.pdf |
SJUD 4/23/2019 6:00:00 PM |
SB 52 |
| SB52 SECTIONAL ANALYSIS 4-22-19.pdf |
SJUD 4/23/2019 6:00:00 PM |
SB 52 |
| SB 80 - Letter of Support.pdf |
SJUD 4/23/2019 6:00:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 80 |
| SB 80 - Letter of Support - RDC.pdf |
SJUD 4/23/2019 6:00:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 80 |
| SB 80 - Letter of Support - Alliance Board of Directors.pdf |
SJUD 4/23/2019 6:00:00 PM SSTA 4/11/2019 3:30:00 PM |
SB 80 |