04/19/2021 01:30 PM Senate JUDICIARY
| Audio | Topic | 
|---|---|
| Start | |
| SB15 | |
| SB23 | |
| Adjourn | 
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 15 | TELECONFERENCED | |
| + | SB 23 | TELECONFERENCED | |
| += | SB 122 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         April 19, 2021                                                                                         
                           1:32 p.m.                                                                                            
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Roger Holland, Chair                                                                                                    
Senator Mike Shower, Vice Chair                                                                                                 
Senator Shelley Hughes                                                                                                          
Senator Robert Myers                                                                                                            
Senator Jesse Kiehl                                                                                                             
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 15                                                                                                              
"An Act relating to the Open Meetings Act; and establishing a                                                                   
civil penalty for violations of the open meeting requirements by                                                                
members of governmental bodies."                                                                                                
                                                                                                                                
     - MOVED CSSB 15(JUD) OUT OF COMMITTEE                                                                                      
                                                                                                                                
SENATE BILL NO. 23                                                                                                              
"An Act relating to proposing and enacting laws by initiative."                                                                 
                                                                                                                                
     - HEARD & HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 122                                                                                                             
"An Act relating to the definition of 'victim.'"                                                                                
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: SB 15                                                                                                                   
SHORT TITLE: OPEN MEETINGS ACT; PENALTY                                                                                         
SPONSOR(s): SENATOR(s) COSTELLO                                                                                                 
                                                                                                                                
01/22/21       (S)       PREFILE RELEASED 1/8/21                                                                                
01/22/21       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/22/21       (S)       CRA, JUD                                                                                               
02/25/21       (S)       CRA AT 3:30 PM BELTZ 105 (TSBldg)                                                                      
02/25/21       (S)       Heard & Held                                                                                           
02/25/21       (S)       MINUTE(CRA)                                                                                            
03/04/21       (S)       CRA AT 3:30 PM BELTZ 105 (TSBldg)                                                                      
03/04/21       (S)       Heard & Held                                                                                           
03/04/21       (S)       MINUTE(CRA)                                                                                            
03/09/21       (S)       CRA AT 3:30 PM BELTZ 105 (TSBldg)                                                                      
03/09/21       (S)       Moved CSSB 15(CRA) Out of Committee                                                                    
03/09/21       (S)       MINUTE(CRA)                                                                                            
03/10/21       (S)       CRA RPT CS  1DP 1DNP 2NR NEW TITLE                                                                     
03/10/21       (S)       DP: HUGHES                                                                                             
03/10/21       (S)       DNP: GRAY-JACKSON                                                                                      
03/10/21       (S)       NR: MYERS, WILSON                                                                                      
03/17/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
03/17/21       (S)       Heard & Held                                                                                           
03/17/21       (S)       MINUTE(JUD)                                                                                            
03/22/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
03/22/21       (S)       Heard & Held                                                                                           
03/22/21       (S)       MINUTE(JUD)                                                                                            
03/31/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
03/31/21       (S)       Heard & Held                                                                                           
03/31/21       (S)       MINUTE(JUD)                                                                                            
04/12/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
04/12/21       (S)       Heard & Held                                                                                           
04/12/21       (S)       MINUTE(JUD)                                                                                            
04/19/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
                                                                                                                                
BILL: SB 23                                                                                                                   
SHORT TITLE: INITIATIVE SEVERABILITY                                                                                            
SPONSOR(s): SENATOR(s) REVAK                                                                                                    
                                                                                                                                
01/22/21       (S)       PREFILE RELEASED 1/8/21                                                                                
01/22/21       (S)       READ THE FIRST TIME - REFERRALS                                                                        
01/22/21       (S)       STA, JUD                                                                                               
03/09/21       (S)       STA AT 3:30 PM BUTROVICH 205                                                                           
03/09/21       (S)       Heard & Held                                                                                           
03/09/21       (S)       MINUTE(STA)                                                                                            
04/13/21       (S)       STA AT 3:30 PM BUTROVICH 205                                                                           
04/13/21       (S)       Moved SB 23 Out of Committee                                                                           
04/13/21       (S)       MINUTE(STA)                                                                                            
04/14/21       (S)       STA RPT 1DP 1DNP 3NR                                                                                   
04/14/21       (S)       NR: SHOWER, REINBOLD, HOLLAND                                                                          
04/14/21       (S)       DP: COSTELLO                                                                                           
04/14/21       (S)       DNP: KAWASAKI                                                                                          
04/19/21       (S)       JUD AT 1:30 PM BUTROVICH 205                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                              
MELODIE WILTERDINK, Staff                                                                                                       
Senator Mia Costello                                                                                                            
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions on behalf  of the sponsor                                                             
of SB 15, Senator Mia Costello.                                                                                                 
                                                                                                                                
FRANK MCQUEARY, President                                                                                                       
Alaskans for Open Meetings                                                                                                      
Anchorage, Alaska                                                                                                               
POSITION STATEMENT: Raised concerns about SB 15.                                                                              
                                                                                                                                
DIRK CRAFT, Staff                                                                                                               
Senator Josh Revak                                                                                                              
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented SB  23 on  behalf of  the sponsor,                                                             
Senator Josh Revak.                                                                                                             
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
                                                                                                                                
1:32:46 PM                                                                                                                    
CHAIR  ROGER   HOLLAND  called  the  Senate   Judiciary  Standing                                                             
Committee meeting  to order at 1:32  p.m. Present at the  call to                                                               
order  were  Senators Kiehl,  Myers,  Shower,  Hughes, and  Chair                                                               
Holland.                                                                                                                        
                                                                                                                                
                SB 15-OPEN MEETINGS ACT; PENALTY                                                                            
                                                                                                                              
1:33:13 PM                                                                                                                    
CHAIR HOLLAND announced the consideration  of SENATE BILL NO. 15,                                                               
"An Act  relating to  the Open Meetings  Act; and  establishing a                                                               
civil penalty for violations of  the open meeting requirements by                                                               
members of governmental bodies."                                                                                                
                                                                                                                                
[CSSB  15(CRA)  was before  the  committee.  This was  the  fifth                                                               
hearing and public testimony was opened and closed on 3/31/21.]                                                                 
                                                                                                                                
1:33:34 PM                                                                                                                    
MELODIE  WILTERDINK, Staff,  Senator Mia  Costello, Alaska  State                                                               
Legislature,  Juneau, Alaska,  on behalf  of the  sponsor, stated                                                               
that at  the last  hearing, the  committee adopted  amendments to                                                               
limit  SB 15  to elected  officials  and to  create a  three-tier                                                               
penalty provision, she said. If  an elected official violates the                                                               
Open Meetings  Act, the official  will receive a warning  for the                                                               
first  violation, a  civil  penalty  up to  $1,000  for the  next                                                               
violation and be  subject to a class B misdemeanor  for the third                                                               
violation, punishable for up to 90  days in jail and subject to a                                                               
fine of up to $2,000.                                                                                                           
                                                                                                                                
1:34:23 PM                                                                                                                    
CHAIR HOLLAND opened public testimony on SB 15.                                                                                 
                                                                                                                                
1:34:42 PM                                                                                                                    
FRANK   MCQUEARY,   President,   Alaskans  for   Open   Meetings,                                                               
Anchorage, Alaska,  stated that the three-tier  penalty provision                                                               
does not consider the infraction's  severity and may allow people                                                               
to game the  system. He referred to subsection  (f), which states                                                               
that  illegal actions  may be  voidable. He  paraphrased that  if                                                               
someone thinks an unlawful act is  taking place at a meeting from                                                               
which  the public  was excluded,  those individuals  must file  a                                                               
lawsuit within six  months. He viewed this as  an onerous process                                                               
for individuals.  Subsection (f) lists  nine reasons why  a judge                                                               
should overlook  the infraction  and let  the illegal  act stand,                                                               
which is inappropriate, he said.                                                                                                
                                                                                                                                
MR. MCQUEARY  explained that  the penalties  would depend  on the                                                               
number  of   infractions.  However,  some  violations   might  be                                                               
accidental, but  others are  not. He  said he  was unsure  that a                                                               
$1,000 fine  would be sufficient  to deter people  from violating                                                               
the  Open  Meetings  Act. He  suggested  the  committee  consider                                                               
changing  "voidable"  to  "void"  to  act as  a  barrier  to  bad                                                               
behavior and to eliminate all of the instructions to the court.                                                                 
                                                                                                                                
1:38:09 PM                                                                                                                    
CHAIR HOLLAND, after first determining  no one wished to testify,                                                               
closed public testimony on SB 15.                                                                                               
                                                                                                                                
1:38:24 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
1:39:16 PM                                                                                                                    
CHAIR HOLLAND reconvened the meeting.                                                                                           
                                                                                                                                
1:39:28 PM                                                                                                                    
SENATOR  HUGHES recalled  receiving  his e-mail.  She offered  to                                                               
work to address Mr. McQueary's  concerns in the next committee of                                                               
referral.                                                                                                                       
                                                                                                                                
1:40:09 PM                                                                                                                    
CHAIR HOLLAND stated his preference to move the bill.                                                                           
                                                                                                                                
1:40:39 PM                                                                                                                    
SENATOR  KIEHL  said the  bill  has  a  further referral  to  the                                                               
finance committee  because of the  fiscal notes. Although  he has                                                               
concerns, he will  not object to moving the bill.  He offered his                                                               
view  that SB  15  does  not provide  a  consistent and  rational                                                               
public  policy.  For  example,   the  planning  commission  could                                                               
restrict people's  ability to sell  their property, which  may be                                                               
voidable, but  the party  would not incur  a penalty.  However, a                                                               
school board  member giving direction  to a superintendent  on an                                                               
ongoing  program outside  of a  public meeting  could incur  jail                                                               
time.  Another   issue  is  that  the   legislature  will  impose                                                               
penalties  on public  officials that  it does  not impose  on its                                                               
members. Finally,  he expressed  concern that local  taxpayers in                                                               
smaller communities  will be burdened  by costs to defend  a city                                                               
council  member  and  school  board  members  who  act  in  their                                                               
official  capacity. He  recalled a  city council  member faced  a                                                               
$37.50 fine from the Alaska  Public Offices Commission (APOC) but                                                               
the costs to defend the person  cost the city $15,000 in taxpayer                                                               
dollars.                                                                                                                        
                                                                                                                                
1:43:28 PM                                                                                                                    
SENATOR  HUGHES   reminded  listeners  that  applying   the  Open                                                               
Meetings Act  to the legislature  would require a  separate bill.                                                               
She stated her view that most  people who want to serve also wish                                                               
to adhere  to the laws. She  offered her belief that  the penalty                                                               
provision will  make people work  a little harder to  ensure that                                                               
they uphold  the law.  She envisioned that  getting to  the third                                                               
penalty tier  would likely be  rare. She said she  looked forward                                                               
to  discussing  subsection (f)  with  Mr.  McQuery, which  is  an                                                               
existing statute and not a provision in the bill.                                                                               
                                                                                                                                
1:44:54 PM                                                                                                                    
SENATOR SHOWER moved to report  SB 15, work order 32-LS-0176\G as                                                               
amended  from  committee   with  individual  recommendations  and                                                               
attached fiscal  note(s). There being no  objection, CSSB 15(JUD)                                                               
was reported from the Senate Judiciary Standing Committee.                                                                      
                                                                                                                                
1:45:19 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
                 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.]                                                                                                  
                                                                                                                                
2:00:16 PM                                                                                                                    
At ease                                                                                                                         
                                                                                                                                
2:00:51 PM                                                                                                                    
CHAIR  HOLLAND   reconvened  the   meeting.  [Due   to  technical                                                               
difficulties, the announcement was not recorded].                                                                               
                                                                                                                                
2:01:22 PM                                                                                                                    
There being no further business to come before the committee,                                                                   
Chair Holland adjourned the Senate Judiciary Standing Committee                                                                 
meeting at 2:01 p.m.                                                                                                            
| Document Name | Date/Time | Subjects | 
|---|