Legislature(2021 - 2022)BUTROVICH 205
04/05/2022 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB188 | |
| SB221 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 188 | TELECONFERENCED | |
| *+ | SB 221 | TELECONFERENCED | |
| *+ | SB 194 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
April 5, 2022
3:40 p.m.
MEMBERS PRESENT
Senator Mike Shower, Chair
Senator Lora Reinbold, Vice Chair
Senator Mia Costello
Senator Roger Holland
MEMBERS ABSENT
Senator Scott Kawasaki
COMMITTEE CALENDAR
SENATE BILL NO. 188
"An Act relating to criminal law and procedure; relating to a
petition for a change of name for certain persons; relating to
procedures for bail; relating to consecutive sentencing for
violation of condition of release; relating to the duty to
register as a sex offender; amending Rules 6(r) and 47, Alaska
Rules of Criminal Procedure; amending Rule 12, Alaska
Delinquency Rules; amending Rule 84, Alaska Rules of Civil
Procedure; and providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 221
"An Act relating to appropriations of federal receipts; and
relating to an increase of an appropriation based on additional
federal receipts."
- HEARD & HELD
SENATE BILL NO. 194
"An Act relating to electronic identification cards; relating to
electronic drivers' licenses and permits; relating to motor
vehicle liability insurance; and providing for an effective
date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 188
SHORT TITLE: CRIM PROCEDURE; CHANGE OF NAME
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/15/22 (S) READ THE FIRST TIME - REFERRALS
02/15/22 (S) STA, JUD
03/31/22 (S) STA AT 3:30 PM BUTROVICH 205
03/31/22 (S) Heard & Held
03/31/22 (S) MINUTE(STA)
04/05/22 (S) STA AT 3:30 PM BUTROVICH 205
BILL: SB 221
SHORT TITLE: CHANGING RPL PROCESS
SPONSOR(s): WIELECHOWSKI
02/22/22 (S) READ THE FIRST TIME - REFERRALS
02/22/22 (S) STA, FIN
04/05/22 (S) STA AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
JOHN SKIDMORE, Deputy Attorney General
Criminal Division
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided supporting testimony on SB 188 on
behalf of the administration.
NANCY MEADE, General Counsel
Office of the Administrative Director
Alaska Court System
Anchorage, Alaska
POSITION STATEMENT: Articulated concerns the Court System has
with SB 188.
CHRISTINE HUTCHINSON, representing self
Kenai Peninsula, Alaska
POSITION STATEMENT: Testified in opposition to SB 188.
QUEEN A. PARKER, representing self
Sterling, Alaska
POSITION STATEMENT: Recounted the duties of the grand jury
during the hearing on SB 188.
MICHAEL GARVEY, Advocacy Director
American Civil Liberties Union of Alaska
Anchorage, Alaska
POSITION STATEMENT: Voiced serious concerns about SB 188 eroding
the due process rights of criminal defendants and others who are
erroneously convicted of crimes.
JOAN CORR, representing self
Soldotna, Alaska
POSITION STATEMENT: Testified in opposition to SB 188.
MIKE COONS, representing self
Palmer, Alaska
POSITION STATEMENT: Raised concerns about SB 188.
CHARLES MCKEE, representing self
Anchorage, Alaska
POSITION STATEMENT: Testified off topic during the hearing on SB
188.
SENATOR BILL WIELECHOWSKI, Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of SB 221.
SONJA KAWASAKI, Staff
Senator Bill Wielechowski
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced SB 221, version I, and presented
the sectional analysis on behalf of the sponsor.
ACTION NARRATIVE
3:40:07 PM
CHAIR MIKE SHOWER called the Senate State Affairs Standing
Committee meeting to order at 3:40 p.m. Present at the call to
order were Senators Holland, Reinbold, Costello, and Chair
Shower.
SB 188-CRIM PROCEDURE; CHANGE OF NAME
3:40:51 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 188
"An Act relating to criminal law and procedure; relating to a
petition for a change of name for certain persons; relating to
procedures for bail; relating to consecutive sentencing for
violation of condition of release; relating to the duty to
register as a sex offender; amending Rules 6(r) and 47, Alaska
Rules of Criminal Procedure; amending Rule 12, Alaska
Delinquency Rules; amending Rule 84, Alaska Rules of Civil
Procedure; and providing for an effective date."
3:41:10 PM
JOHN SKIDMORE, Deputy Attorney General, Criminal Division,
Department of Law, Anchorage, Alaska, stated that SB 188 does
four primary things to protect victims. He described three of
the four points.
1) Name Changes People under the control of the Department of
Corrections (DOC) or that must register as a sex offender
are required to notify DOC, the Department of Public
Safety (DPS), and the victims of any name changes. This
addresses the complaints victims have had that changing
one's name can manipulate the system to hide on the sex
offender registry or when their status changed in the
Department of Corrections. The court also has new
standards to evaluate whether or not the name change is
appropriate.
2) Bail Provisions in the bill about bail seek to address the
significant number of defendants who are released pretrial
with little or not bail. The problem is that a significant
number of defendants who are released on their own
recognizance (OR), violate the terms of their bail
repeatedly and the courts have not adjusted bail to
reflect the additional violations. SB 188 proposes to
expand the existing presumption that the defendant poses a
danger to the community if they violate conditions of
bail. This should suggest to the court that it adjust
subsequent bail to reflect the additional violations.
3) Grand Jury Mr. Skidmore described the court rule changes
as the most important part of the bill. First, hearsay
would be allowed at grand jury. This stems from the 2019
case, State v. Powell, in which the court indicated that
presenting a recorded video statement of a victim of child
sexual abuse to police and investigators was not
admissible at grand jury without the child testifying at
grand jury as well. The Department of Law and the
administration's position on this issue is that the ruling
in Powell was fundamentally contrary to the bill that
passed in 2005 that allowed hearsay to be presented in
those circumstances. In the Powell case the court
indicated that it thought the rule change applied to
trials and not grand jury because one of the requirements
it found was that the victim would be subject to cross
examination and the court found that the victim is never
subject to cross examination at grand jury because the
defendant's counsel is never present at grand jury. The
court further stated that if the legislature had intended
to allow hearsay at grand jury, it should have amended the
court rules to allow such information at grand jury. SB
188 amends the court rules to allow hearsay at grand jury.
This protects victims in any criminal case from being
retraumatized. Additionally, this change will help
alleviate the significant backlog of cases that resulted
when grand jury and trial proceedings were shut down due
to the global health pandemic. Research indicates that the
federal government and 32 states allow hearsay at grand
jury. He highlighted that when the Alaska Constitution was
enacted, hearsay was allowed at grand jury, so it is
constitutional. In 1973 the Alaska Supreme Court adopted a
rule to prohibit certain types of hearsay and SB 188
changes that rule.
4) Plain-Error Rule [Mr. Skidmore did not discuss the Plain-
Error Rule.]
CHAIR SHOWER listed the individuals who were available to answer
questions.
3:49:08 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Anchorage, Alaska, stated that
while SB 188 is problematic in a number areas, she would focus
on just two. First, the Court System believes it would be very
problematic to implement Section 6. The court does not believe
it would be more efficient to require the court to issue written
findings. She referenced a document in the bill packets that
shows that about 20,000 bail orders are issued each year, and
each of those would need to have written reasons for each of the
findings. The number of bail hearings has also been about 20,000
per year. She directed attention to the blank four-page bail
order in the packets to demonstrate that there are dozens of
things the court can order by checking different boxes.
MS. MEADE explained that when somebody is arrested and
arraigned, the prosecutor typically seeks to have a substantial
number of conditions imposed if the defendant is to be released.
The defense attorney or public defender will typically want
fewer restrictions on the defendant. She said she finds it
ironic that SB 188 would require the court to make a written
finding for everything that is ordered when it is the prosecutor
that is asking for most of the conditions. She maintained that
the reason is generally very obvious when a box is checked. For
example, if there is a domestic violence condition that says the
defendant shall not return to a specific residence, the reason
is clear. The defendant presents a danger to the person at that
residence.
MS. MEADE stated that the requirement in Section 6 is
unnecessary and it would cripple the Court System. She
highlighted that she had yet to submit a fiscal note but it
would be shocking, because new judges and clerks would be needed
to handle the added work.
3:53:38 PM
MS. MEADE said the Court System's second concern relates to the
criminal court rule changes in the bill. She explained that
there are rules of procedure that let the attorneys or self-
represented persons know how to get the substantive rights the
legislature gives them. The 13-member Criminal Rules Committee
meets four or five times a year and they are experts in criminal
procedure and are well-qualified to talk through any proposed
rule changes, such as whether the hearsay rule should be changed
as proposed in the bill. She said the technical changes to the
rules proposed in Sections 15 and 16 that redefine plain error
are difficult to understand and it seems that the Criminal Rules
Committee is a more appropriate forum to handle the proposed
rule changes than the legislature. She said she did not have a
view about whether the court rule changes were a good or bad
idea or whether they were constitutional, but she would say that
it deserves a lot of attention.
MS. MEADE noted that she also included two Supreme Court cases
in the packets that speak to the substance of the hearsay rule
and whether it should be allowed at grand jury. Although Mr.
Skidmore said it was not a constitutional issue, she said the
Wassillie v. State case has pages that analyze the
Constitutional Convention minutes and why the grand jury rule is
important. It is considered a protection to keep innocent people
from being brought to trial. She included the cases to
illustrate the complexity of the issue and that it needs to be
explored in detail, preferably by people who work with court
rules daily.
MS. MEADE suggested that the question about court rule changes
could be resolved in another way. She pointed out that the rule
changes proposed in the bill were never submitted to the
Criminal Rules Committee. Furthermore, there is a fulltime court
rules attorney whose job it is to work with the Criminal Rules
Committee to put things in the appropriate format and once a
month present to the Supreme Court recommendations and thoughts
about rule changes. That did not happen with the rule changes
presented in the bill, but it could, she said.
3:58:36 PM
CHAIR SHOWER asked for an explanation of the process for the
administration to work with the Criminal Rules Committee on
these matters.
MS. MEADE replied it can be very simple because anybody can
contact the court rules attorney to suggest or discuss a rule
change. Also, the Department of Law has two members on the
Criminal Rules Committee who can suggest a rule change at any of
the meetings and the court rules attorney will open a file and
it will be discuss at subsequent meetings.
CHAIR SHOWER asked if rule changes can happen outside the
legislative process.
MS. MEADE answered yes. The Rules of Court are procedural, not
substantive, so the Supreme Court adopts them without
legislative action.
4:00:13 PM
SENATOR HOLLAND noted that he sees Wassillie v. State in the
documents but not the other Supreme Court case.
MS. MEADE said State v. Gieffels is the 1976 case that speaks to
the protections the grand jury provides and adopts the Alaska
Bar Association (ABA) standards for how prosecutors present
cases to grand juries, which is basically the court rule.
CHAIR SHOWER advised that the cases were available on BASIS but
were not printed for the bill packets.
SENATOR REINBOLD stated that she always favors efforts to speed
up the prosecution of sexual assault cases so perpetrators are
put behind bars more quickly. However, she had never seen a bill
with so many proposed court rule changes and she would like
further explanation of the Criminal Rules Committee and its
processes.
4:02:17 PM
MS. MEADE stated that the constitution gives the legislature the
right to change court rules with a two-thirds majority vote.
That typically happens when the legislature changes a
substantive law that incidentally changes a court rule
correlated to that substantive law. That is what needs to be
passed by a two-thirds majority vote, and it typically is. What
is unusual is to have a bill such as this that directly changes
court rules, although it is permitted by the constitution.
MS. MEADE explained that the Criminal Rules Committee is one of
nine rule committees that discuss procedural rule changes and
make recommendations to the Supreme Court. The Supreme Court
appoints the members of these committees according to their
expertise. The committees tend to be a well-rounded group of
people who discuss whether proposals for a rule change should be
recommended to the Supreme Court to ultimately be adopted as a
procedural rule.
She noted that a prosecutor is among the members of the Criminal
Rules Committee and that attorney might propose this change to
the hearsay rule and the committee would talk it over and come
up with a recommendation. The court rules attorney then takes
that recommendation, as well as any recommendations from the
other eight rules committees to the next monthly meeting with
the Supreme Court. The attorney briefs the court on what the
different rules committees discussed and whether or not they
decided to put forward a recommendation or just wanted to
highlight a minority view. The Supreme Court then has the chance
to adopt any rule changes after it goes through this process.
SENATOR REINBOLD asked if there were members of the
administration that could already do this. She also asked if the
Criminal Rules Committee process was similar to the process the
legislature follows based on Mason's Manual of Legislative
Procedure.
MS. MEADE replied the rules committees sit around a conference
table and discuss things in a less formal, more conversational
way than the legislature does.
SENATOR REINBOLD restated her question.
4:06:34 PM
MS. MEADE said two Department of Law attorneys and an advocate
from the Office of Victims' Rights are members of the committee.
She said she wasn't clear what Senator Reinbold meant when she
asked if the administration could do this.
SENATOR REINBOLD indicated her question was answered.
CHAIR SHOWER offered his perspective that the question was
whether those members had the ability to suggest the changes
proposed in the bill and his understanding is that they do.
MS. MEADE said that's correct.
SENATOR REINBOLD said the second point was to compare the court
rules to the procedures the legislature follows based on
Mason's. It was an effort to draw a parallel between two
different branches of government.
CHAIR SHOWER asked Ms. Meade if she would provide the fiscal
note because it will factor into the bill's progression.
4:07:55 PM
MS. MEADE said she estimated that the court would need new
judges in each of the 10 major courts and each judge with law
clerks and staff costs about $700,000 per year. There would also
be capital expense because there aren't any courtrooms available
for additional judges. The cost would be in the $7 to $10
million range.
CHAIR SHOWER summarized that the estimated recurring cost would
be in the $7 to $10 million range and then there would be a one-
time capital cost for facilities.
MS. MEADE agreed.
CHAIR SHOWER said he would talk to the members to ask if they
wanted anything more formal than the estimate.
He asked Lisa Purinton if she had any comments on the bill.
4:09:15 PM
LISA PURINTON, Chief, Criminal Records and Identification
Bureau, Division of Statewide Services, Department of Public
Safety, Anchorage, Alaska, said she had nothing to add.
CHAIR SHOWER asked Renee McFarland if she had any comments on
the bill.
4:09:31 PM
RENEE MCFARLAND, Deputy Public Defender, Appellate Division,
Public Defender Agency, Anchorage, Alaska, said she was
available to answer questions but had no comments at this time.
4:10:04 PM
CHAIR SHOWER opened public testimony on SB 188.
4:10:24 PM
CHRISTINE HUTCHINSON, representing self, Kenai Peninsula,
Alaska, stated that she felt compelled to point out that a
primary function of a grand jury is to protect the people from
corrupt elected and appointed officials. She said [Mr. Skidmore]
is familiar with the efforts to prevent a grand jury from
hearing things it needs to hear to help citizens defend
themselves from bureaucracy. She maintained that making hearsay
part of the testimony and increasing efficiencies by saving
money and time does nothing to restore the pain and suffering of
the people when they have no recourse.
MS. HUTCHINSON agreed with Ms. Meade that the proposed changes
should have gone to the Criminal Rules Committee so they could
be discussed by the people who deal with criminal rules. She
stated opposition to SB 188 and suggested scrapping hearsay and
creating a grand jury that does what it was originally intended
to do, which is to protect the people.
4:13:46 PM
QUEEN A. PARKER, representing self, Sterling, Alaska, recounted
the duties of the grand jury during the hearing on SB 188. She
stated that the law must apply equally to all people and the
evidence of crime and corruption must be seen and investigated
by an independent Alaskan grand jury so that those in authority
will be held accountable. She cited the right of all Alaskans to
report crime to the grand jury and the right of the grand jury
to investigate those crimes as guaranteed by art. I, sec. 8 of
the state constitution; the duty of inquiry into crimes and
general powers under AS 12.40.030; the obligation of a juror to
disclose knowledge of crime under AS 12.40.040; jury tampering
under AS 11.56.590; the transcript from the Alaska
Constitutional Convention that talks about the power of grand
juries to inquire into the willful misconduct of public
officers; and the Alaska grand jury handbook that clarifies that
the statute authorizes a juror to ask the grand jury to
investigate a crime that the district attorney has not presented
to them.
MS. PARKER concluded, "We want justice and I hope to God that
our representatives that are in authority will represent us in
these situations."
4:16:11 PM
MICHAEL GARVEY, Advocacy Director, American Civil Liberties
Union of Alaska, Anchorage, Alaska, voiced serious concerns
about SB 188 eroding the due process rights of criminal
defendants and others who are erroneously convicted of crimes.
In particular, Sections 15 and 16 would impede correcting errors
made during the trial process. He maintained that those sections
would change the criminal appeals system by valuing finality of
conviction over the fairness of those convictions.
MR. GARVEY emphasized that fairness at trial is a cornerstone of
due process, particularly for individuals who do not have the
resources to fight unjust convictions. He said reversing errors
made during trial is already difficult and SB 188 will make it
more so. He pointed out that Section 14 would markedly increase
the amount of hearsay allowed at grand jury, which would
undercut a grand jury's ability to ask questions and assess the
truthfulness of the testimony. Defendants already cannot present
evidence at grand jury, and this change would further stack the
deck and allow cases to advance when the evidence is
questionable. He stated that these provisions and the language
that would have reduced the number of unconvicted people who are
released on bail before trial, would erode due process rights.
MR. GARVEY stated that supporting victims does not have to come
at the expense of due process rights. Giving prosecutors more
tools to put people in prison unjustly and undercut defendants'
ability to maintain their innocence does not represent this
value. For these reasons ACLU Alaska opposes SB 188.
4:18:22 PM
JOAN CORR, representing self, Soldotna, Alaska, stated that it
is a travesty to think that hearsay could be allowed as
evidence. She maintained that there are likely many examples of
this being used against innocent people. She agreed with a
previous caller who suggested the committee eliminate all
reference to the grand jury from the bill. She concluded, "I
want the rights of the grand jury restored instead being told
what they can and cannot do."
4:19:55 PM
MIKE COONS, representing self, Palmer, Alaska, thanked Senator
Reinbold for her last questions and suggested that the problems
with the justice system stem from the fact that "we have a bunch
of lawyers that can change rules when it's supposed to be the
legislature that changes the rule through legislation and
bills." He insinuated that the Criminal Rules Committee was
nothing more than an extension of Legislative Council that
"doesn't give a hoot and a holler about what We the People say;
it's only what the lawyers say." As much as he does not agree
with the ACLU on most matters, he was leaning towards a "No" on
SB 188. He described SB 188 as a convoluted mess, which he
always opposes.
4:21:42 PM
CHARLES MCKEE, representing self, Anchorage, Alaska, stated that
he faxed an application for the permanent fund [dividend]. It
had a notary witness and his signature on the bottom to indicate
who he is and his lack of confidence in the legislative body and
the voting aspect of the Bar Association. He continued to
testify off topic including that there was no citation for the
reason that he was arrested and booked in the Palmer jail.
4:26:00 PM
CHAIR SHOWER closed public testimony on SB 188.
He asked Mr. Skidmore to provide closing comments.
4:26:22 PM
MR. SKIDMORE stated that the Gieffels and Wassillie cases that
Ms. Meade cited are illustrative of why these court rules should
change. The Gieffels case was handed down in 1976, three years
after the Supreme Court changed the rules to say that hearsay
wouldn't be admissible. In that case the defense argued that the
indictment should be dismissed because the state had presented
hearsay from doctors who were not available to appear in person.
Subsequent to that case, the rules were changed to allow
telephonic testimony. He restated that Gieffels illustrates that
when the courts hand down certain rulings, it is appropriate for
the legislature to step in and fix policy issues.
MR. SKIDMORE agreed with Ms. Meade that the Criminal Rules
Committee can meet to look at rules. However, he suggested that
it was out of the ordinary for the committee to meet and
overrule something that the courts had already handed down as
case law. Furthermore, he said the committee meets just three or
four times a year and takes a very long time to review and talk
about rules. He said the legislature is a more efficient
process.
MR. SKIDMORE advised that a bill that originally allowed hearsay
at grand jury began in the legislature. That was challenged in
State v. Powell and an express statement in that case was that
if the legislature wants to allow hearsay, it should change
other court rules. That is what SB 188 proposes to do, he said,
and Ms. Meade indicated it was appropriate.
MR. SKIDMORE said the administration agrees with the aspect of
the Wassillie case that talks about the important role the grand
jury plays in the protection of constitutional rights. However,
the administration wants it to be in a more logical and
commonsense manner that is consistent with what 32 other states
and the federal government do by allowing hearsay at grand jury.
Alaska grand juries already consider a significant number of
types of hearsay, but it still presents challenges and problems
that could be easily remedied by what this bill proposes. He
recounted the particulars of the case and that the Supreme Court
said the case needed to be overturned because a report
introduced at grand jury violated a court rule that hearsay was
not permitted at that stage. It is that type of inefficiency the
bill seeks to address.
4:31:57 PM
MR. SKIDMORE said he appreciates Senator Reinbold's concerns
about the number of pages in the bill that address court rules,
but he wanted to point out that the result will be to simplify
Criminal Rule 6 that addresses grand jury. The other pages
address the Plain-Error Rule. He noted that the grand jury
decision in the Wassillie case was overturned based on a concept
in the Plain-Error Rule. He acknowledged that the Plain-Error
Rule is a more complicated rule and he would understand if this
committee was more comfortable leaving it to lawyers to sort
out. By contrast, he said grand jury is not complicated; it is a
simple, common sense solution to make things better for victims
and to make the system work more efficiently.
MR. SKIDMORE submitted that SB 188 does not say that grand jury
isn't still a protection for the people. All the protections are
still present. SB 188 just provides a different way to present
evidence, which makes it easier for victims and is consistent
with what most other states use.
MR. SKIDMORE said he appreciates the concerns expressed earlier
from the Kenai Peninsula. He emphasized that those issues must
and will be addressed, but SB 188 was not the right vehicle
because that's not what the bill is about.
4:35:34 PM
SENATOR REINBOLD asked 1) if the grand jury is there to protect
the people; and 2) if he could give a concise update and what is
happening with the grand jury in Kenai.
MR. SKIDMORE confirmed that grand juries are to protect the
people. However, that protection is to ensure that the evidence
that is reviewed warrants an indictment so the case can go
forward to trial. He said he couldn't discuss the ongoing
litigation further other than to say that he hopes resolution
will be soon.
4:37:10 PM
CHAIR SHOWER found no further questions or comments and stated
he would hold SB 188 in committee for future consideration.
SB 221-CHANGING RPL PROCESS
4:37:32 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 221
"An Act relating to appropriations of federal receipts; and
relating to an increase of an appropriation based on additional
federal receipts."
He noted that this was the first hearing and there was a
committee substitute (CS) for the committee to consider after
the introduction.
4:37:52 PM
SENATOR BILL WIELECHOWSKI, Alaska State Legislature, Juneau,
Alaska, sponsor of SB 221, stated that this legislation seeks to
change the way appropriations are handled when the legislature
is not in session. Art. IX, sec. 13 of the Constitution of the
State of Alaska clearly states that the legislature is the
appropriating body. However, a statute called the revised
program legislative (RPL) delegates the power of appropriation
to the executive branch when the legislature is not in session.
He suggested that this law is unconstitutional. He reported that
a lawsuit on this issue last year went to the superior court but
the legislature reconvened before the court ruled on that
particular issue.
SENATOR WIELECHOWSKI questioned the wisdom of giving one
individual the sole authority to decide where hundreds of
millions of dollars should go, particularly with little to no
public process or legislative oversight. SB 221 seeks to restore
the legislature's constitutional role in budgeting and to
streamline the process to address the situation of unexpected
revenue.
He summarized that SB 221 is about protecting the budgeting
process, restoring balance between the legislative and executive
branches, and giving the public more say in how state money is
spent.
CHAIR SHOWER asked the members if they had any questions.
4:40:31 PM
SENATOR REINBOLD stated appreciation for the bill and relayed
her frustration with the RPL process.
CHAIR SHOWER solicited a motion to adopt the committee
substitute (CS) for SB 221.
4:41:13 PM
SENATOR REINBOLD moved to adopt CSSB 221, work order 32-
LS1472\I, as the working document.
CHAIR SHOWER objected for discussion purposes.
4:41:43 PM
SENATOR COSTELLO observed that the CS probably will require a
title change because it brings up AS 24.05.100 related to
special session. She asked the sponsor to respond.
4:42:00 PM
SENATOR WIELECHOWSKI thanked her for pointing that out and
acknowledged that a title change may be required. He noted that
making the change in committee would require just a majority
vote.
SENATOR COSTELLO expressed her preference to ask for a new title
so it reflects everything in the bill.
CHAIR SHOWER asked if she wanted to offer the motion.
SENATOR COSTELLO replied not now.
4:42:56 PM
CHAIR SHOWER removed his objection. Finding no further
objection, version I was adopted as the working document.
He asked Ms. Kawasaki to introduce the committee substitute.
4:43:32 PM
SONJA KAWASAKI, Staff, Senator Bill Wielechowski, Alaska State
Legislature, Juneau, Alaska, introduced SB 221, version I, on
behalf of the sponsor by paraphrasing the sponsor statement for
version I that read as follows:
SB 221 reforms the statutory revised program
legislative (RPL) process that arguably render it
unconstitutional.
I believe that the current RPL law is unconstitutional
both on its face and in practice. The legislature is
the constitutionally authorized appropriating body;
this means that, under the Alaska Constitution, the
legislature possesses both the power and the duty of
appropriations. The governor cannot overstep this
legislative authority, and the legislature cannot
avoid its duty.
Current law unconstitutionally delegates the power and
the duty of appropriations to the governor. When the
legislature is not meeting in session, AS 37.07.080(h)
permits the governor to expend additional revenue
received by the Statewith the governor acting as the
appropriating authority, setting state funding
priorities. Facially, the law expressly assigns the
governor the ability to determine spending of "federal
and other program receipts" when the funds were "not
specifically appropriated by the full legislature."
These provisions enable impermissible actions; they
appear to allow the governor to spend not only federal
dollars but also, potentially, other funds like
general fund surplus dollars that would yet be
available for appropriation during the next regular
session, while explicitly acknowledging that the full
legislature has never appropriated the funds.
Procedurally, to the extent that the Legislative
Budget & Audit Committee (LB&A) is given an oversight
role over the governor's RPL submissionsthis too is
an unconstitutional delegation of authority. LB&A may
not stand in place of the full legislature, but under
current law, LB&A can approve the RPL spending to
occur in less than 45 days after submission. Moreover,
the law allows the governor to spend the funds
unilaterally after 45 days, regardless of whether LB&A
ever takes up the matter in committee or even if it
actually disapproves itso long as in the governor's
sole discretion, the governor "determines to authorize
the expenditure." I believe this process violates the
constitution by its express provisions as well as in
separation of powers and checks and balances
principles.
SB 221 rectifies these defects while still enabling a
mechanism for spending federal dollars when the
legislature is not meeting in session. The bill
eliminates the governor's ability to use the RPL
process for revenue generated from sources that are
not federal. It provides a process that empowers the
legislature to appropriate the federal funds by
establishing increased amounts in an enacted
appropriations bill to be spent on budget items when
federal revenue exceeds State forecasts, but only when
the legislature has specifically identified those
items and set permissible increase limits. The limits
may be provided for by percent increases, which would
allow the legislature to thoughtfully consider the
amounts of potential increases to budget items
relative to their base appropriations and to one
another.
Under SB 221, the governor may submit RPLs to LB&A for
confirmation that spending proposals are maintained
within budget items and limits restricted by the
legislature in an enacted appropriations bill. LB&A
may also make other recommendations for the spending.
Finally, under SB 221, the governor may not spend the
funds until 45 days have elapsed from the date of the
LB&A confirmation, unless LB&A recommends the
expenditures are made earlier.
Concerns over the constitutionality of the RPL process
notably arose in 2020 when the legislature recessed
the regular session due to the Covid-19 pandemic, and
the State received large sums of federal dollars that
could be spent to address the public health disaster.
In particular, the State was given $1.25 billion in
Coronavirus Relief Funds that could be expended in a
relatively discretionary manner, on "necessary
expenditures incurred due to the public health
emergency with respect to the Coronavirus Disease 2019
(COVID19)." The governor purportedly exercised his
authority under the current RPL process, including
attempting to expend: $569 million for direct
municipal relief, and $290 million for small business
grants, but only $10 million on relief to individual
Alaskans to prevent homelessness. A Juneau resident
sued the State, arguing the governor's spending was
unconstitutional. The lawsuit prompted the legislature
to return to the Capitol to "ratify" the governor's
RPL expenditures before the final day of the regular
session. The superior court decided the ratification
remedied any failure to appropriate the funds. The
ruling was not appealed, so there is no final
precedent on the issue.
There are only two types of bills contemplated by the
Alaska Constitution: (1) substantive bills, like those
establishing or changing laws, and (2) bills for
appropriations. Because no appropriation bill was
passed addressing the governor's RPL spending, to this
day I contend that the governor's unconstitutional act
could not simply be "ratified."
We should avoid a repeat of what happened with RPL
spending in 2020. Please join me in fixing the
defective RPL process and ensuring the legislature
retains its control over its discretionary
appropriations authority as mandated by the Alaska
Constitution.
CHAIR SHOWER found no questions and asked Ms. Kawasaki to
proceed with the sectional analysis.
4:47:35 PM
MS. KAWASAKI provided the sectional analysis for SB 221, version
I. It read as follows:
Section 1 Governor May Call Special Session in Less
than 30 Days
Section 1 provides an express exception to allow the
governor to call a special session in less than 30
days to address appropriations of additional federal
receipts in excess of those accounted for under the
amendments of this legislation.
Section 2 Amending the RPL Process
Section 2 amends the revised program legislative (RPL)
process to provide that, for the State to expend
additional funds it receives above the appropriations
made in an appropriation bill, the funds may only be
federal funds and may only be spent in accordance with
the following procedure:
In an appropriation bill, the legislature may provide
for an amount that is a specific maximum increase of
an appropriation item above the amount actually
appropriated by the appropriation bill; the specific
maximum increase may be provided as a percentage of an
appropriation item, and
(1) The governor may submit a proposal for spending
the additional federal funds via a "revised program"
to the Legislative Budget and Audit Committee for
review;
(2) The Legislative Budget and Audit Committee reviews
the governor's revised program proposal and may
recommend alternative funding amounts or distributions
among multiple items, not to exceed any specific
maximum increases previously provided by an
appropriation bill;
(3) The governor may submit a corrected or changed
revised program proposal to the Legislative Budget and
Audit Committee for review;
(4) Once the governor submits a final revised program
proposal, the Legislative Budget and Audit Committee
confirms the proposal does not exceed any specific
maximum increases previously provided by an
appropriation bill; and
(5) Revised program amounts confirmed by the
Legislative Budget and Audit Committee may be expended
after 45 days, unless the committee recommends an
earlier date of the expenditures.
4:49:49 PM
Section 3 Calling a Special Session to Spend Amounts
Above Permissible RPL Subjects
To expend amounts exceeding those permissible under
the RPL process, including applying funds to other
items not previously addressed with a specific maximum
increase in an appropriation bill, the governor must
call a special session.
Section 4 Limiting Applicability of the Effective
Date of the Bill
This section establishes that the new RPL process
would not apply to items funded under the previous RPL
provisions as they read and were applicable before the
effective date of the act.
CHAIR SHOWER asked if she had any comment on the fiscal note.
MS. KAWASAKI replied the bill doesn't have a fiscal note.
4:50:43 PM
SENATOR REINBOLD offered her view of special sessions in Juneau
and posed the possibility of an amendment.
CHAIR SHOWER asked the sponsor if he had any comments.
SENATOR WIELECHOWSKI replied he had no comment.
4:51:25 PM
CHAIR SHOWER asked if he had seen the governor's bill SB 241,
"An Act making appropriations for the operating expenses of
state government and certain programs; making capital
appropriations and supplemental appropriations; capitalizing
funds; and providing for an effective date."
CHAIR SHOWER said none of the senators he'd asked had seen the
bill and it's an example of legislators not having a chance to
look at where the money goes even though it's important to be
able to offer that kind of input. The amount of money is almost
irrelevant, he said. It's the process that's important and it
should follow the constitution. He expressed frustration at
being cut out of the loop even inside the legislative branch. He
continued to comment:
This is after the subcommittee process, by the way,
it's all closed out and now here we go and we're going
to hand almost a billion dollars to the Senate Finance
co-chairs to come up with a plan, and the governor,
and I'm going 'Where are we in the process?'
He expressed appreciation for SB 221. He emphasized that the
constitution should be followed, the statute should be changed
so it's correct, and every legislator should have a chance to
have input.
4:54:13 PM
SENATOR COSTELLO stated that it is fundamentally wrong to hand
off the constitutional power of the legislature to a single
committee when the legislature is not in session. She expressed
appreciation for SB 221 and posited that it will resolve much of
the conflict with the RPL process.
4:55:10 PM
SENATOR WIELECHOWSKI commented that it is even more shocking
that even the committee that the legislature defers its power to
during the interim doesn't have the ability to stop the
governor.
SENATOR COSTELLO said the sponsor statement does a good job of
outlining that point. The balance of power is important and the
current process undermines the power of the legislature. She
said she has no problem with the legislature returning to
address such issues.
CHAIR SHOWER mentioned the possibility of amending the bill to
address what he has experienced in the RPL process. He
reiterated that an important part of the process is to give
individual legislators an opportunity to give input and talk
about the needs in their districts. It should not fall to just
the governor or a handful of legislators.
SENATOR REINBOLD emphasized that the current RPL process is
entirely unacceptable.
4:57:38 PM
SENATOR WIELECHOWSKI said he was pleased to see so much interest
in the bill but suggested that while the committee was
interested in other areas, SB 221 deals solely with RPLs and the
process. Adding more may make its progress through this and the
other body more difficult.
4:58:45 PM
CHAIR SHOWER opened public testimony on SB 221; finding none, he
closed public testimony.
CHAIR SHOWER held SB 212 in committee.
4:59:29 PM
There being no further business to come before the committee, he
adjourned the Senate State Affairs Standing Committee meeting at
4:59 p.m.