Legislature(1999 - 2000)
04/28/1999 01:20 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SJR 3 - REPEAL OF REGULATIONS BY LEGISLATURE
CHAIRMAN KOTT stated the next order of business is Senate Joint
Resolution No. 3, Proposing an amendment to the Constitution of the
State of Alaska relating to the repeal of regulations by the
legislature.
Number 1680
JOHN KIMMEL, Legislative Administrative Assistant to Senator Robin
Taylor, came forward to speak on behalf of Senator Taylor, sponsor
of SJR 3. He stated that SJR 3 is a proposed amendment to the
Constitution of the State of Alaska which would grant the
legislature the authority to repeal a regulation adopted by a state
agency that is inconsistent with its enabling statute. It would
also allow the people of Alaska to provide the legislature with the
authority to repeal regulations through a simple resolution. He
indicated that the most onerous portions of state government are
the application of regulations to our lives.
MR. KIMMEL believes that if the legislature can make those
regulations more attuned to legislative intent, the public would be
more pleased with their government and may understand it better.
The public would also know that the policy makers could quickly and
efficiently amend those regulations that they find onerous. He
stated that this issue has come before the voters in the past, and
now the time has come again for the voters to reduce the amount of
time and money spent in legislation. The voters would have a
chance to speak out about the proposed amendment in the next
general election.
Number 1746
CHAIRMAN KOTT asked how many times this issue has been presented to
the voters.
MR. KIMMEL replied that it has been presented to the voters three
times.
REPRESENTATIVE ROKEBERG said, "Once very narrowly (indisc.)."
CHAIRMAN KOTT asked whether it was the first time or the last time.
REPRESENTATIVE ROKEBERG said he believed it was the middle time
[laughter]. He asked whether the Senate changed the language
versus the resolution that was presented to the voters before.
MR. KIMMEL believes the Senate did. He believes the original had
administrative regulations included somehow. He does not know the
entire history of that.
REPRESENTATIVE ROKEBERG stated that it seemed to him that the
language was slightly different and that was one of the concerns.
Number 1808
REPRESENTATIVE CROFT stated that it is important to know the
distinction of the language from the last three times "we've asked
and been rejected." He said, "If we're asking them to do the same
thing, it's one thing, to the extent that there's a material
difference that would be important, but I'd like to see the last
three ones that failed if you have copies of them."
MR. KIMMEL replied that he does not have copies now, but could get
copies for the committee.
REPRESENTATIVE CROFT stated that it seems to be important if there
is any difference from what has been tried three times previously.
REPRESENTATIVE JAMES commented that what was in the voter pamphlet
also needs to be seen. She stated that there was no effort on
anyone's part to pass or not pass that, and it was difficult for
people to understand. She said the other issue is that "it's a
little out of synch with the rest of the things that we do in
government where the first, second and third reading of issues and
where the separation of powers, and, this, to do a resolution to
overturn administrative law is a reach."
REPRESENTATIVE JAMES indicated that we do have the right to undo
regulation by pieces of legislation, but it is difficult to do if
the reason it is being undone is because of the onerous intent that
was not the intent of the legislation. She blames the legislature
for that because they make very bland statements in their
legislation which have to sometimes be characterized by the
administration who sometimes guess wrong. She feels "a hammer" is
needed.
REPRESENTATIVE JAMES stated that some of the states that have
passed this resolution never have to use it is because they have a
hammer. This helps to have the negotiation between the
administration and the legislature in order to solve the problem.
Number 1932
CHAIRMAN KOTT agrees that the problem, to a large extent, has been
brought about by themselves. He said, "It amazes me that if you're
sponsoring a piece of legislation and it passes, and ultimately
signs into law, there's going to be regulations out there. And
then, as the sponsor of your piece of legislation, you should at
least take some interest in the regulations to ensure that they
meet your intent, and then work with the department to clarify
anything that, perhaps, is incorrectly stated in the regulatory
process."
REPRESENTATIVE ROKEBERG informed the committee that he believes the
questions Representative Croft raised earlier can be found in the
file on HJR 1, a bill sponsored by Representatives Rokeberg and
James during the Twentieth Alaska State Legislature. He stated, "I
think one reason we felt very strongly about this last time, we
felt that there was a change in attitude in the interest,
particularly in a business community; as the amount of regulations
has grown over the years because of these problems we just
discussed."
REPRESENTATIVE ROKEBERG believes there is a recognition among the
public now that there has to be a simpler way to rectify some of
those laws by regulation that are promulgated by the bureaucracy
and the administration. He thinks a sound case can be made, and
that the business community is in a position now to get behind
that. He indicated that a point of frustration for he and
Representative James has been airport regulations in which they
tried to change four or five sentences in the leasing law to
correct the commercial leasing activities at the international
airports in the state. He stated that they are still waiting, four
years later, for the regulations which became over 200 pages. He
feels that if this "hammer" had been available back then the
Department of Transportation and Public Facilities could have been
a little more receptive to what the public wanted.
Number 2045
REPRESENTATIVE MURKOWSKI referred to the enactment of a statute by
way of an initiative with regard to the medical use of marijuana.
She stated that the regulations are being worked on now and will
take effect in June. She said there are many who believe the
regulations and the statute are not necessarily consistent with the
intent. She asked whether the ability to repeal the regulation
changes when a statute has been enacted by initiative.
MR. KIMMEL replied that he has not looked at that part of it.
REPRESENTATIVE MURKOWSKI stated, by law, a statute that has been
enacted by initiative cannot be repealed.
REPRESENTATIVE JAMES believes that the same thing might apply in
the case of an initiative as it would in a statutory change. The
reason they would utilize this resolution process is because the
regulations do not implement the intent of the law. She said if
the regulations on the medical marijuana bill do not implement the
intent of the law that would be a reason to turn them over.
REPRESENTATIVE JAMES stated, "If you don't like the regulations and
you can't find something in the law that they are, I mean, the
law's so open, many times it is, that they could do it this way or
this way, and they just chose the wrong way according to your
opinion or according to the public, then that's a different issue.
Then what you need to do is clarify the law if it's not
specifically enough in the law as to what was meant, what the
intent was, and that's why they've guessed wrong and taken the
wrong approach. Then you need to change the law, you don't need to
use a resolution. The only time you use a resolution is if there's
some definite evidence that the regulation does not activate the
intent of the law."
REPRESENTATIVE CROFT expressed frustration at putting in the
Constitution of the State of Alaska various things that "we have
the power to do." He stated that when a regulation is contrary to
statute, you can challenge it. He indicated that sometimes it is
difficult to prove because the statute is so wide open that almost
nothing is contrary to it. He said, "When there's a statute that
we think isn't what we meant, is contrary to the statute, ... but
the administration thinks it was and the court system thinks it was
... that's why we have this separation of powers. That's why it
keeps getting rejected by the people, and, when we try to do it in
statute, unconstitutional. We're saying that's not what we meant.
... We still have an option in that case, which is to change the
statute. ... That's within our power now. ... I think it's been a
consistent view of the people that that's just not, that's
overstepping our bounds. We have a proper role to play in this.
Right now, if the marijuana regulations don't reflect the statute,
... you can pass a law that ... changes it."
REPRESENTATIVE CROFT continued to say, "We've looked at three
strikes, you're out before. I think we're three strikes we're out
on this proposal, and that we ought to start, after being told
three times, at a tremendous expense, 'No', we ought to take 'No'
for an answer. And we ought to start figuring out ways that are
within our constitutional authority. ... Colorado does a sunset of
regulations without law putting them back in. The fact that the
legislature didn't approve it, is the legislature's opinion. ...
It's an idea that is within ... our jurisdiction. The other
[state] ... has a shift in the burden of proof, which I think you
can do constitutionally. If we say, 'That's not what we meant.',
then it's a much harder task to prove that it was. [It] could
still be, right? God forbid, we might act out of pure partisan
political actions in passing the resolution instead of pure public
good. ... A court could still look at it and say, 'Well, the
legislature passed a resolution by a close vote that said that's
not what they meant, but, boy, it fits the statute just hand in
glove', ... but the burden is now shifted. The court is going to
force the person challenging it (indisc.) that it doesn't fit. You
can shift that burden of proof and say, 'If the legislature said,
'That wasn't what we meant.', you, the agency, have to prove it was
before we go any further. All of these things are at least
arguably constitutional. They don't violate separation of powers,
... but I don't know why we're trying to get this dead horse to
stand up and run."
Number 2346
REPRESENTATIVE ROKEBERG responded, "Because of the Alive case."
REPRESENTATIVE CROFT said, "The Alive case told us we couldn't do
it. And we tried three times to get the approval of the people to
do it and they keep telling us 'no.' When are we going to take
'no' for an answer? He believes that there is a genuine separation
of powers argument that the people understand. He stated, "We
ought to take that 'No' for what it was worth and try and figure
out alternative approaches instead of just running this up again."
Number 2369
REPRESENTATIVE JAMES indicated she heard Representative Croft say,
"It's okay. We can do it with a two-thirds vote." She stated the
issue is whether or not this can be done with a two-thirds vote or
a majority vote. She specified that with this constitutional
amendment it can be done with a majority vote, but without the
constitutional amendment it cannot be done. She feels that if the
administration was going to listen and change the regulation then
they would have already done it. She said the public she has been
talking with has said they think a majority vote should do it.
REPRESENTATIVE JAMES stated that a resolution is not subject to a
veto. She does not believe this is completely a whole separation
of powers. She understands Representative Croft's argument and
agrees that this seems to be controverting the whole system of
putting forth a law that has not gone through the process outlined
in the Constitution of the State of Alaska. She said, "Once it
becomes in law, ... then we've given that authority of regulation
writing to the administration, and, so, then we have hands-off
without a two-thirds vote." She thinks it is a problem and she
would be perfectly happy to take back some of the authorization.
However, she does believe this is an option because no one wants to
have the cost of the regulations in the legislature's budget, as
opposed to the administration's budget. She feels it is
unrealistic to believe that a two-thirds vote could always be
accomplished.
TAPE 99-43, SIDE B
Number 0001
REPRESENTATIVE CROFT stated, "We're overruling the executive and
the judiciary when we do this. The executives decided this ought
to be in this way. We've given them the authority (indisc.) to be
in that area, and there either is a judiciary case saying, 'Yeah,
this is within the purview granted by the legislature or not.' So,
it is entirely appropriate that when we seek to overrule the ...
determination of the other two branches of government we do it with
a two-thirds vote."
REPRESENTATIVE CROFT disagreed with Representative James' comment
that the public told her they wanted it by two-thirds. He argued,
"The people have said three times they didn't. They wanted it by
a two-thirds, not a majority. They wanted it the way it was."
REPRESENTATIVE JAMES disagrees about what the court said. She
said, "We didn't have constitutional authority to do what we did.
By putting this in as a constitutional amendment, we have
constitutional authority." She indicated there are several states
that have done constitutional authority this way. She said the net
result is that those states do not have a conflict anymore.
Number 0085
REPRESENTATIVE ROKEBERG agrees with Representative Croft that this
is a separation of powers issue. He said, "When Monsieur
Montesquieu articulated the theory, and our Founding Fathers here
in the state did it, ... At one point, there was not only a
separation of powers theory, but there was even a balancing of
powers theory ... implicit in that, and our Founding Fathers
decided not to do that. They gave up an abundance of power to the
executive. But they did reserve to the legislature the right to be
the policy makers and law makers of the state."
REPRESENTATIVE ROKEBERG believes the legislature should reserve the
right to make the law. By granting authority to the executive
agencies by statutory authority to adopt regulation, he feels we do
cede that power. He stated that the point is to take back that
power. He said he is beguiled by Representative Croft's theory of
having a two-thirds vote to overcome two of the three branches of
government.
Number 0143
REPRESENTATIVE CROFT stated it is his belief that two different
overrulings are being discussed. He referred to the Alive case
that Representative James mentioned and stated that she is right
that this case indicates that constitutional authority was not yet
had. He said other states have ruled that way, and some have not.
Other states are in agreement with the Alive case. He said,
"Clearly, if there's some question on the regulation, the executive
thinks that's the way to go. That's why they put the regulation,
... If it is so out of whack with the statute, you can bring it to
court, and, if you're right, you will win. The court will say,
'Yeah. The statute says black and the reg[ulation] says white.'
And they overrule regulations on that basis. ... We're really
saying we want a power to do that even when a court says, 'Yeah.
That looks like it fits.' That's what I mean by overruling, ...
Not necessarily overruling the Alive case, but there's a branch of
government who [is] supposed to do these reg[ulation]s and they do,
and they disagree with us. Then there's a branch of government
that's supposed to decide if things are done according to law, and
they've said, 'The reg[ulation] fits.'"
REPRESENTATIVE CROFT continued to say, "And we're about to say
you're all wrong. ... We should do that by two-thirds ... We know
resolutions. We have them all the time. ... They propose
constitutional amendments, but aside from that, they're usually of
wimpier stuff. And we should have to go through the formal process
of a bill and have a super majority, a sizable majority, to say
both branches were wrong in this instance. The judiciary upheld
this reg[ulation], the executive put it in, but they're both wrong,
and we're right. We ought to do that with some surety. ... Vetoes
are overridden."
Number 0242
REPRESENTATIVE KOTT stated that SJR 3 would be held in committee.
He requested Mr. Kimmel provide the committee with the last three
ballot propositions and the election pamphlets on this issue.
REPRESENTATIVE MURKOWSKI asked that she be provided with
information on the Alive case.
REPRESENTATIVE JAMES stated that she agrees with the Alive case.
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