Legislature(2025 - 2026)BUTROVICH 205
04/04/2025 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SCR1 | |
| Confirmation Hearing(s)chief Administrative Law Judge | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SCR 1 | TELECONFERENCED | |
SCR 1-ART. II, SEC. 16, CONST: VETO RECON
1:31:07 PM
CHAIR CLAMAN announced the consideration of SENATE CONCURRENT
RESOLUTION NO. 1 Relating to the procedure that the Thirty-
Fourth Alaska State Legislature will use to reconsider bills and
items vetoed by the governor.
CHAIR CLAMAN said that this is the first hearing of SCR 1 in the
Senate Judiciary Standing Committee. He asked the invited
testifier to put herself on the record and begin her remarks.
1:31:36 PM
SUSAN ORLANSKY, representing self, Anchorage, Alaska, testified
by invitation on SCR 1, as follows:
I am a lawyer in private practice in Anchorage, and I
have done that for more than 40 years now. Over the
decades, I've had the privilege to have been asked to
do legal research on an enormous variety of issues.
Approximately a year ago, I was contacted by Senator
Claman and by Doug Gardner, who is, or at least was
then, the Senate majority counsel. They asked me if I
had time to look into issues related to Article II,
Section 16 of the Alaska State Constitution, which is
the section that governs the legislature's "Action
Upon Veto" to use the formal title of the section.
I had no preconceptions when I began my research about
how this section is designed to work, since I had
absolutely no previous occasion to do any research
related to this section of the Constitution. It turned
out to be a surprisingly straightforward research
project. Often, legal research ends in ambiguous and
unclear territory where there is no one clearly
correct interpretation of a statute or constitutional
provision, and advocates reasonably could argue for
different interpretations. That's what most litigation
is all about. This project was not like that. Here I
found really only one sensible answer. Here, there is
complete consistency between:
• The explicit language of the State Constitution;
• The minutes from the Constitutional Convention that
explain the intent of the framers who drafted the
language; and also
• The rules and practices adopted by the very first
legislature, which included some people who had been
delegates to the Constitutional Convention, who had,
therefore, a unique understanding of what the
framers intended the legislature to do in response
to a gubernatorial veto.
1:33:36 PM
MS. ORLANSKY continued her testimony on SCR 1:
I had no part in drafting SCR 1, but I have read it,
and I think it very accurately sets out the history
and the meaning of Article II, Section 16. If you'll
indulge me, I've got maybe about five minutes' worth
of comments to explain my research and my analysis
briefly. So, I'd like to make a couple of points about
the constitutional language and the subsequent
practice by the very first legislature. I hope to use
somewhat less legalistic-sounding language that's in
the proposed resolution to make this as clear as
possible. The starting point for any exercise in
interpreting the Constitution has to be the language
of the Constitution. The first sentence of Article II,
Section 16, says very explicitly:
Upon receipt of a veto message during a regular
session of the legislature, the legislature
shall meet immediately in joint session and
reconsider passage of the vetoed bill or item.
Later sentences in this section, which were added
later, address what happens if the legislature is not
in session when a bill is vetoed. They provide that if
the legislature reconvenes in either a regular or
special session after receiving the veto, the
legislature shall reconsider the vetoed bill in joint
session, not later than the fifth day after
reconvening. The bottom line is that the
constitutional language is crystal clear that the
legislature is required to meet in joint session after
receiving a veto. The Constitution uses the word
"shall," which is a word of requirement. There's no
discretion to decide not to meet in joint session
after receiving a veto.
1:35:25 PM
MS. ORLANSKY continued her testimony on SCR 1:
Second, the Constitution and the minutes make very
clear that the joint session is to be held promptly.
The Constitution literally says "immediately" if the
legislature is in session when the veto is delivered,
and "within five days of reconvening" if the
legislature is not in session when the veto is
delivered. So, if there's anything at all unclear in
the constitutional language, it's only exactly what
does "immediately" mean. I'm not going to say there's
a definitive answer to that, but I think the
constitutional language and the Constitutional
Convention minutes suggest some pretty clear
guidelines. At one extreme, the framers of the
Constitution made clear they actually didn't intend to
require both houses to drop everything and move
literally immediately into joint session. They
discussed that, and they rejected that notion. But
equally clearly, the framers' statements made clear
that they meant that the legislature must hold the
joint session promptly, without undue delay. The first
legislature, which dealt with the first-ever
gubernatorial vetoes, met in joint session on the same
day the vetoes were delivered. It voted on one of the
vetoes and postponed consideration of the other for
about two more days. An outside limit for what can be
considered prompt enough to meet the spirit of the
constitutional requirement of immediately is strongly
suggested by the five-day limit that the Constitution
provides for meeting in joint session, if the
legislature has adjourned at the time the veto is
issued, and the legislature will next meet when it
reconvenes for a further regular or special session.
In other words, the Constitution explains that five
days after returning to session is enough time when
the legislators will have to come back and reorganize
themselves for getting back to work. So, if five days
are enough in that situation, it's fair to assume
that, when the veto is delivered while the legislature
is already in session, waiting more than five days
would not satisfy the constitutional requirement to
meet in joint session immediately.
1:37:37 PM
MS. ORLANSKY continued her testimony on SCR 1:
The last point I want to make is that all of this is
also completely consistent with the legislature's
current Uniform Rule 45; this is the rule titled
"Vetoed Bills." It provides that after the governor
returns a vetoed bill, with his objections, to the
house of origin when the legislature is in session,
the house shall note the veto message in its journal,
and the other house is promptly requested to meet in
joint session to reconsider passage of the vetoed bill
or item. So again, using that word "promptly" invited.
If the legislature is not in session when the veto is
delivered, your Rule 45 tracks the Constitution and
states that the bill must be considered in joint
session within five days of that legislature's
reconvening in a regular or special session.
1:38:28 PM
MS. ORLANSKY continued her testimony on SCR 1:
I've been told that in the recent past, the
legislature sometimes turned to Uniform Rule 51 rather
than Rule 45 for procedures on responding to a veto. I
think that's pretty clearly a mistake. Rule 51 is a
general rule on joint sessions. It provides for how a
joint session may be called by agreement of the
presiding officer of both houses or by a vote of the
majority of one house. It's very well accepted in law
that a more specific rule controls over a general
rule, which is why it's a mistake to be guided by the
general rule on calling a joint session instead of the
very specific rule, Rule 45, which was written
precisely to define the legislature's required
procedure in response to a vetoed bill. In sum, my
research supports the conclusion that the proposed
resolution accurately describes the history behind the
language in Article II, Section 16, and accurately
describes the way the first legislature interpreted
the language. So, if anyone's got any questions, I'm
happy to try to answer them.
1:39:38 PM
SENATOR MYERS agreed with the testifier's research and
conclusions but said one section might create some confusion,
referring to the "whereas" clause on page 2, line 17. He
expressed his understanding that this clause could eventually
become precedential. He said he has no issue with the portion
referencing Senate Bill 140 and March 18. However, he noted that
line 19 references the legislature meeting in joint session on
January 18, 2024, to reconsider vetoed items from House Bill 39,
the operating budget. He stated that although the legislature
did meet, it voted on only one budget veto, ignored
approximately two dozen other line-item vetoes, and also ignored
two bills that had been vetoed the previous fall. He said this
portion of the clause does not align with the testifier's
presentation. He expressed his concern that the "whereas" does
not really set a clear precedent and, in effect, highlights how
the legislature ignored the Constitution. He asked the testifier
to express her opinion on that.
1:41:34 PM
MS. ORLANSKY replied that she is not an expert on the dates or
on what occurred during the last joint session and noted that
she did not participate in writing SCR 1. She said her
understanding, based on his comments, is that what is written in
the clause is accurate but may not be complete or provide the
full context. She stated that she would leave it to the
committee and the drafters to determine whether the point the
senator wished to make would be more effectively conveyed if the
clause presented a more complete picture of what happened.
1:42:13 PM
SENATOR STEVENS said that recognizing the difficulty of calling
the legislature back into session when members are spread across
the world, he wanted to ensure he understood the timeline
correctly. He asked whether the five days to react begins only
after the legislature has reconvened, rather than five days
after members begin being called in. He sought confirmation that
the five days the legislature has to consider an issue applies
after it has reconvened.
MS. ORLANSKY affirmed that is correct.
SENATOR STEVENS said, as a follow-up to remarks regarding
reconsideration of a governor's vetoes during a joint session,
the legislature has often picked and chosen which matters to
address, and he believes the legislature has the right to do
that.
1:43:09 PM
CHAIR CLAMAN continued the subject, offering the following
supposition. The legislature is in joint session with ten vetoed
items before it. There is interest in overriding two items but
not the remaining eightperhaps because there are not enough
votes to override those eight. He asked whether the legislature
would be failing to meet its constitutional obligations if it
votes on items one and two and, when items three through ten
come up, a member moves to adjourn the joint session and the
majority votes to adjourn. He asked whether the constitutional
requirement is satisfied by meeting in joint session even if the
legislature does not specifically vote on each vetoed item.
MS. ORLANSKY replied that she had not researched that question
specifically, but her initial reaction is that the legislature
would not have satisfied the constitutional requirement. She
believes it requires the legislature to apply its response to
every vetoed message, based on her reading of the Constitution
and minutes. She stated that if, for example, there were six
vetoed items, she would find it difficult to interpret the
Constitution as allowing the legislature to reconvene, vote on
one item, ignore the remaining five, and still have met its
obligation. She stated that she reads the Constitution as
creating a duty for the legislature to be heard in response to a
veto. She noted that if members counted votes in advance and
knew an override would fail, the legislature could take very
quick votes without extended discussion, as nothing requires
long debate or efforts to revise legislation to satisfy the
governor or the majority. She said her reading of the
Constitution is that the legislature, meeting in joint session,
is required to vote on the veto within five days.
1:45:07 PM
SENATOR MYERS highlighted the testifier's comments and said he
tends to agree with her. He said the constitutional language
requires the legislature to meet immediately in joint session
and then immediately reconsider passage of the vetoed bill or
item. He said that indicates the legislature cannot simply meet
and adjourn; it must vote on each item. He contended, per the
Constitution, the legislature shall immediately meet in joint
session and "reconsider passage of the vetoed bill or item,"
which he interprets as requiring an up-or-down vote on
everything. He said this could be done either as a packagesuch
as one vote on ten budget vetoesor by voting on each item
individually, but the legislature cannot vote on only two or
three and leave the remainder. He referred to comments from
Delegate Taylor in the minutes of the Constitutional Convention
and quoted in a memo provided in the bill packet, emphasizing
that vetoed items must return to the house of origin and not be
allowed to die through inaction. The delegate objected to the
withdrawal of the motion that added the word "immediately." He
said that while the delegates were not directly addressing the
situation of convening and immediately adjourning without taking
a vote, their statements support the principle that a vote is
needed. He stated that this applies to whether one house fails
to request a joint session, or whether the legislature convenes
in joint session and adjourns without voting. He said the
delegates tried to get the legislature to avoid taking those
actions. He expressed his belief, as did the invited testifier,
that the legislature would require a vote if it were following
the Constitution.
1:47:42 PM
SENATOR KIEHL pointed out a language variation in art. II,
sec. 16 of the Constitution. He said it seems when it comes to
appropriation items, the language addressing vetoes returned
while the legislature is in session states that the legislature:
shall meet immediately in joint session and reconsider
passage of the vetoed bill or item.
SENATOR KIEHL said, however, when the same section discusses
bills vetoed after adjournment of the first or second session,
it refers only to reconsidering the bill and does not refer to
items. He asked how that distinction should be understood when
discussing an amount of money for a purpose, which he believes
the Alaska Supreme Court has defined as an item.
1:48:54 PM
MS. ORLANSKY replied that she did not have an answer to that
question. She said her research over the past year focused on
the obligations of the legislature when it is already in
session. She noted that the first sentence of the section was
part of the original Constitution, while the sentences
addressing what occurs when the legislature is not in session
were added later, which she thinks was in 1975. She stated that
she is not the expert and did not review all that material, so
she does not have a good answer. She said she understood his
point and that it may be valid, but she was not prepared to
offer an opinion on how the Constitution should be read because
she has not conducted the necessary background research.
1:49:46 PM
SENATOR KIEHL said that, generally, both good-government
structure and the minutes of the Constitutional Convention point
to the balance of powers requiring the legislature to convene
and vote. He recalled previous events and said he believed there
was a time when the legislature passed a partially funded budget
to the governor, who then vetoed every line by half or two-
thirds. He noted that such a circumstance would have required a
very long joint session, even without discussion.
1:50:39 PM
SENATOR MYERS said that the committee received several legal
memos as part of the documentation for SCR 1 and that there
appears to be some confusion or conflict among them regarding
how the Supreme Court might become involved. He said one memo
suggested that if the legislature ignored a vetoed item, it
could theoretically face a lawsuit, while another memo,
referencing the Meekins case, noted that the Supreme Court
generally tries to avoid telling the legislature what to do. He
asked the testifier to shed more light on how to interpret those
points and how the legislature can find that balance.
MS. ORLANSKY replied that she would likely bypass a direct
answer because she knows what she researched and what she did
not research in depth. She said it is correct that there is case
law pointing in both directions. She stated that the Supreme
Court frequently does not want to tell the legislature how it
should operate. She noted, however, there may be a difference
between the Supreme Court telling the legislature whether it is
following its own ruleswhich the Supreme Court may be reluctant
to doand the Supreme Court determining whether the legislature
is abiding by the Constitution. She said the balance of powers
may require the Supreme Court to review and weigh in on a
properly brought lawsuit alleging that the legislature is not
following the Constitution, and that the outcome of such a case
could differ from a lawsuit asserting only that the legislature
is not following its own rules.
1:52:29 PM
SENATOR KIEHL referred to the testifier's opening remarks and
asked why it would be invalid to assume that if there are enough
votes to adjourn a joint session, then there are obviously not
the supermajorityor, in the case of appropriations, the higher
thresholdneeded to override a veto. He asked why a vote to
adjourn a joint session with several items still pending would
not accomplish the same result.
MS. ORLANSKY replied that her best answer returns to the
distinction between specific and general provisions, noting that
specific provisions ordinarily control over general ones. She
said that while there is a general rule about when the
legislature may adjourn a joint session, there is a very
specific rule about what the legislature is required to do when
calling a joint session to reconsider a vetoed bill. She stated
that if she were hired to defend the position that the
legislature must meet in joint session and act on a veto, she
would argue to the Supreme Court that the specific provision
governing the legislature's response to a veto controls over the
general rules governing when the legislature may convene or
adjourn a special session.
1:54:16 PM
SENATOR MYERS followed up with a question on that point. He
asked whether the following hypothetical scenario aligns with
the spirit of what the delegates talked about in the first
legislature:
• The governor vetoes ten items in the operating budget.
• The legislature convenes to vote on those vetoes for possible
overrides.
• Some vetoed items are politically sensitive for certain
members.
• Certain legislators want to override two or three items but do
not want to vote on others because their views and those of
their constituents differ, making them hesitant to cast a vote
on the record.
• Certain legislators feel the same way, but about opposite
items.
SENATOR MYERS stated that, in such a situation, the question
would shift from whether there are enough votes to override any
specific item to whether a vote on adjournment reflects how many
legislators want to avoid taking a vote on a given budget item.
He asked how that scenario interacts with the delegates' intent
to prevent the legislature from sitting on an item and not
taking a vote.
1:55:58 PM
MS. ORLANSKY responded that she is not a legislator or a
politician but understands why some politicians might feel that
way. However, the Constitution places a duty on legislators to
meet and reconsider the veto. She acknowledged that the role of
legislators carries inherent difficulty and is not always
comfortable one. She then expressed her belief that when a veto
occurs, the constitutional requirement to meet and reconsider
the veto prevails over a member's comfort or political choice.
1:56:57 PM
SENATOR STEVENS said that, with all due respect to the
testifier, who comes highly recommended and has done great work,
the legislature tends to find the attorney who will give the
answer it wants.
CHAIR CLAMAN replied that he was not sure what the senator meant
about the answers the committee received.
SENATOR STEVENS stated that the interpretation flies in the face
of legislative precedent and ties the legislature's hands. He
said the legislature can always have a motion to adjourn and the
body must address that motion immediately. He noted that the
legislature must follow multiple rules. He expressed concern
about where this discussion is taking the legislature.
1:58:03 PM
CHAIR CLAMAN opened public testimony on SCR 1; finding none, he
closed public testimony.
1:58:42 PM
CHAIR CLAMAN held SCR 1 in committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Joan M. Wilson Resume- Chief Administrative Law Judge.pdf |
SJUD 4/4/2025 1:30:00 PM |
|
| SCR 1 Version A.pdf |
SJUD 4/4/2025 1:30:00 PM |
SCR 1 |
| SCR 1 Version A Sponsor Statement 1.29.2025.pdf |
SJUD 4/4/2025 1:30:00 PM |
SCR 1 |
| SCR 1 Supporting Document - Alaska Constitution, Article II Section 16.pdf |
SJUD 4/4/2025 1:30:00 PM |
SCR 1 |
| SCR 1 Supporting Document- Senate Majority Counsel Memo with Exhibits 3.11.2024.pdf |
SJUD 4/4/2025 1:30:00 PM |
SCR 1 |
| SCR 1 Supporting Document - S. Orlansky memo to D. Gardner 03.21.2024.pdf |
SJUD 4/4/2025 1:30:00 PM |
SCR 1 |