Legislature(1993 - 1994)
02/15/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CHAIRMAN PORTER announced that two resolutions were on the calendar: HJR 1, Use of Initiative to Amend the Constitution, and HJR 11, Repeal of Regulations by the Legislature. Before beginning the hearing on the two resolutions, Chairman Porter announced that the Speaker of the House had requested that the Judiciary Committee waive its referral on HB 134, An Act relating to temporary transfers of commercial fisheries entry permits. He noted that the bill had been referred to four committees. He explained that the bill would allow medically infirm limited entry permit holders, aged 65 or over, who had held the permit for at least ten years to transfer their permits on a year-to-year basis to other individuals. CHAIRMAN PORTER commented that he would not mind waiving the bill from committee, as he did not see any burning legal questions associated with the bill, and because it would be heard by three other committees in the House. Number 038 REP. DAVIDSON objected to the proposed action. He added that he was familiar with the bill from previous years. Rep. Davidson said that more and more limited entry permits were becoming private property, which invited the Internal Revenue Service to become part of the process. He felt that this would lead to a lack of control over the state's resources over the long term. Number 061 REP. PHILLIPS asked the Chairman which other committees HB 134 had been referred to. Number 067 CHAIRMAN PORTER said that the bill had been referred to the Fisheries, Resources, and Finance Committees, in addition to the Judiciary Committee. Number 072 REP. PHILLIPS moved to waive the bill from the Judiciary Committee based on the thorough review that she felt it would receive in its other three committees of referral. Number 080 REP. DAVIDSON maintained his objection to the waiver. He said that HB 134 would allow a person to hold on to a permit until his or her death. He asked what would happen in the event that a permit was in another person's name at the time the original permit holder died. He questioned who would get the permit in that case. Number 104 CHAIRMAN PORTER said that HB 134 would not affect that particular question. REP. DAVIDSON asked how that could be. CHAIRMAN PORTER said that the bill would allow the permit holder, if he or she met the other criteria, to let someone else use the permit instead, on a year-to-year basis. If the permit holder were to die, the question of transference would be the same as it was now, he added. Number 123 REP. NORDLUND asked who sponsored the bill. CHAIRMAN PORTER replied that Rep. Moses was the sponsor of HB 134. A roll call vote on whether members supported waiving HB 134 from the Judiciary Committee was taken, with five yea votes and 1 nay vote. Number 150 REP. DAVIDSON asked if HB 134 was currently before the committee. CHAIRMAN PORTER said that it was not. REP. DAVIDSON said that bills were typically not waived from a committee until they were before that committee. MS. GAYLE HORETSKI, COMMITTEE COUNSEL FOR THE HOUSE JUDICIARY COMMITTEE, said that Tam Cook from the Legislative Legal Services Division had indicated that it was permissible to waive a bill from committee although the bill had not yet reached that particular committee. Number 163 CHAIRMAN PORTER said that he had wanted to discuss the waiver with the committee members, although he, as the chairman, could have waived it without their knowledge or consent. He said he would ask that HB 134 be waived from committee the following day during the floor session. HJR 1: USE OF INITIATIVE TO AMEND CONSTITUTION CHAIRMAN PORTER called Mr. Chip Thoma to address the committee. Number 631 CHIP THOMA said that he strongly supported HJR 1, which he said addressed certain inequities in the law and in the constitution. He noted that he had also testified in support of SJR 6, a similar measure. He said that HJR 1 allowed citizens access to the constitutional amendment process, access which they currently do not enjoy. MR. THOMA commented that were HJR 1 to pass, it was his intention to place constitutional amendments relating to recall on the ballot. MR. THOMA noted that Article 11, Section 8, of the Alaska constitution currently said that statutes governing recall were to be made up by the legislature. He cited his involvement in the recall movement over the previous 18 months. In researching the constitution, he and others found that the drafters had made the recall process unattainable. MR. THOMA mentioned that his intention was to offer amendments reducing the requirements from the present two step process to a one step process. Additionally, he said that he planned to offer amendments reducing the number of signatures needed from 45% of those who voted in the most recent election, to 5% of those voters. He noted that Ross Perot got on the Alaska ballot with the signatures of only 1% of the voters. MR. THOMA added that he intended to offer amendments eliminating all legal challenges and judicial review from the recall process. He said that it was up to the citizens to determine the veracity of statements being made for a recall. As an Anchorage judge recently ruled (on a school board recall issue), it was not up to the attorney general and Mr. Edgar Paul Boyko to challenge the recall and thus delay it through court action. MR. THOMA noted that the first step of the recall process had been accomplished at a cost of under $10,000. However, court challenges during the second stage of the recall process were ensuring that those who wanted to have a recall vote would pay a high price for it. MR. THOMA summarized that his intended program was to make the recall process shorter and less costly. He said that he had spoken with Rep. Martin, who was sponsoring a similar measure. Rep. Martin had indicated that all states that allowed initiatives and referenda required only a simple majority, not a 2/3 majority. He said it was very easy to get 1/3 of Alaskans to oppose any measure. He expressed his opinion that a simple majority requirement should be a part of HJR 11, as was the case with all other initiative and referendum laws. MR. THOMA commented that the recall movement had spent four months negotiating with the Department of Law over the wording of the recall. The department had signed off on all language, he said; however, the department still challenged the recall. He expressed his opinion that the challenges were dilatory tactics and that Mr. Boyko and Attorney General Cole should be chastised for their actions. MR. THOMA summarized his comments by saying that the recall process was currently very onerous and that his intention was to streamline and simplify it. For that purpose, he said, he supported HJR 11. He stated that he was not a constitutional scholar, but he did not find anything else wrong with the constitution. He felt that the recall process was one glaring exception. Number 702 REP. GREEN asked if the legislature could pass a law saying that something could not be challenged by a court. Number 708 MR. THOMA said that he doubted the legislature would take such an action, but he said they did have that authority. Number 715 REP. KOTT asked if the sponsor of HJR 11 could address the committee. Number 720 REP. GAIL PHILLIPS, PRIME SPONSOR, explained that HJR 1 proposed amendments to the constitution which would allow the use of the initiative process to amend the constitution if approved by 2/3 of the voters. She said that under current law, voters could propose and enact laws by initiative and approve or reject acts of the legislature by referendum. REP. PHILLIPS noted that the Governor had asked for support for constitutional amendments through the initiative and referendum process during his State of the State address. She explained that only the legislature, by a 2/3 vote of each body, could recommend that a proposed amendment to the constitution be put before the voters. She said that she recommended that the same 2/3 requirement be put into place for the initiative process to amend the constitution. REP. PHILLIPS described the initiative process to the committee members. She noted that currently, 21 states allowed for the initiative process and 17 of those states allowed amendment of the constitution via that process. She then called the committee members' attention to the background materials in their files. (A copy of Rep. Phillips' written testimony is on file in the House Judiciary Committee.) CHAIRMAN PORTER thanked Rep. Phillips for her testimony and apologized for not hearing her comments first. He called Judge Tom Stewart to the witness table to address the committee. Number 766 JUDGE TOM STEWART, A RETIRED STATE OF ALASKA SUPERIOR COURT JUDGE, expressed his firm opposition to HJR 1. He mentioned that he had been elected to the House in 1954 and had chaired the Committee on Statehood and Federal Relations that called the Constitutional Convention. He noted that he had been involved in constitutional issues since that time. He said he had consulted experts all over the country on constitutional questions. He mentioned that many of those experts had been involved in writing state constitutions. Number 807 JUDGE STEWART said that he had learned that it was vital to not take actions on constitutional questions without undertaking extensive research. He said it was important to learn the potential consequences of particular language and policies before they were added to the constitution. TAPE 93-13, SIDE B Number 000 JUDGE STEWART said that 21 states had the amendment by initiative process and that experts had studied what had happened in those states. He spoke about the process by which the Alaska constitution had been written and the intensive study that surrounded that process. The single issue of how the constitution could be amended was studied and debated intensely for 60 days, he said, and the amendment by initiative process was decisively rejected at that time. He said that the committee should not take quick action on this issue. Number 049 JUDGE STEWART pointed to the state of California's constitution as an example of what could happen with the amendment by initiative process. He mentioned the many internal inconsistencies within the California constitution. He stated that the California supreme court had a horrible job trying to decipher the meaning of its constitution. He said that one of the reasons that the California constitution was one of the worst in the nation was because of the amendment by initiative process. JUDGE STEWART noted that every California ballot contained a long list of amendments to the constitution and voters did not have the opportunity to consider the significance of those amendments. He said the amendments were generally the product of special interest groups with narrow concerns. He added that the amendments did not take into consideration the balance of the constitutional language. JUDGE STEWART spoke of our nation and our state as republics. He noted that the responsibility of carrying out governmental functions was placed in our representatives. He mentioned that the legislature debated changes in law, but the initiative process was a yes-or-no situation for the voters. There was no opportunity to amend the language in that situation, he noted. The lack of deliberation in the initiative process smacked of irresponsible government, he added. JUDGE STEWART commented that at the Constitutional Convention, language was never accepted without being amended for clarity first. He said that if he were in the committee members' shoes, he would be extremely reluctant to act on HJR 1 without consulting many constitutional experts. He reiterated that the issue of amendment by initiative was deeply considered by the Constitutional Convention delegates, but in the end was rejected. Number 210 JUDGE STEWART stated that if HJR 1 were to pass, he expected that one of the first amendments to be offered would be to elect the attorney general. He said there existed a popular notion that the attorney general was the attorney for the people. However, looking at the states where the attorney general was an elected official, the governor of those states had no responsible legal advisor. He noted that the function of the attorney general was to provide legal advice to the governor. If a governor did not have a loyal attorney general, the governor's program would be thwarted. He noted that in states that elected their attorneys general, that office was a springboard to the governorship. In those cases, the attorney general often sought to thwart the governor's programs and make her or him look bad. Number 247 JUDGE STEWART also predicted that the amendment by initiative process would cause the legislature to lose control of the budget. He said that constitutional amendments restricting the legislature's authority to deal with budget issues would be passed by initiative. He cited the need for Alaska to impose new taxes due to declining oil revenues. He said that he feared that the amendment by initiative process could tie the legislature's hands with regard to taxation issues. He called Rep. Martin's HJR 9 "nonsense" because people were not in a position to determine the financial problems of the state and to weigh whether or not a tax should be imposed. Number 285 JUDGE STEWART cited the disastrous effects of California's Proposition 13, which he said tied the hands of the governor and the legislature in making responsible budget decisions. At a minimum, he said, the legislature should not act on this measure during the first year of its two-year session. He stated that the measure should be studied over the interim by a special committee that would consult with constitutional experts. He added that the use of a 2/3 or a 3/4 vote was not the answer to many of the problems inherent in the amendment by initiative process. Number 312 JUDGE STEWART cited the constitutional budget reserve fund amendment as an example of the problems created when the language of an amendment was not treated carefully. He called the language in the amendment nonsensical. He warned that the amendment by initiative process would result in many more similar instances. JUDGE STEWART said he was not trying to say that the constitution should not be amended. He stated that the constitution failed in some respects, including the apportionment process. The language regarding apportionment was obsolete, he noted. The whole apportionment process ought to be revisited in consultation with experts in the field. Judge Stewart added that there were other areas of the constitution which he felt needed to be amended. Number 356 JUDGE STEWART acknowledged that perhaps the provisions that we had for amending the constitution were too restrictive. However, he noted, there were alternatives to HJR 1, including the creation of a Constitutional Revision Commission charged with reviewing and researching proposed constitutional amendments. The Commission could then report to the legislature on its findings. He named a number of experts who could consult with the legislature on the question of constitutional amendments. JUDGE STEWART urged the committee to consult with experts before altering the pattern of amending the constitution, which was written the way that it was under the advisement of experts in the field of constitutional law. He expressed his deep personal concern with tampering with the fundamental structure of the government without adequate study of potential consequences. JUDGE STEWART said the state of Utah had a standing Constitutional Revision Commission, and he urged the Alaska legislature to make contact with that body before taking the far-reaching step of endorsing HJR 1. Number 456 CHAIRMAN PORTER thanked Judge Stewart for his remarks. Number 459 REP. PHILLIPS asked Judge Stewart if the legislature had, in the past when amending the constitution, invoked a committee on style and grammar to review the language. Number 466 JUDGE STEWART said that to his knowledge that had not occurred. In the old days, however, he noted that there were more lawyers in the legislature. Those people had been trained in the use of clear language, he added. However, some lawyers obfuscated. He said that his own personal style used short, clear sentences. But, he noted, that was the most difficult language to write. He cited the constitutional budget reserve fund language as an example of very complicated, unclear language. He said amendments to the constitution reflected the failure of the legislature to review language for style and grammar. JUDGE STEWART predicted that HJR 1 would have disastrous effects. He reiterated that he was not opposed to amendments, but he favored very carefully considered amendments. He urged the committee to look to California and Washington to see what sort of problems amendment by initiative could bring about. Number 538 JUDGE STEWART remarked that he believed the Alaska constitution to have a serious error in that it required bond issues to be voted on by the people. Number 545 JUDGE STEWART said the legislature did not study the impact of a given bond issue on the overall state budget. They abdicated that responsibility to the voters, who were not in the position to say how a given bond issue weighed against all of the state's other bond issues. He expressed his opinion that the legislature ought to be responsible for bonds. Number 576 JUDGE STEWART again urged the committee to exercise great caution and to study the issues carefully before taking action on HJR 1. Number 580 REP. KOTT thanked Judge Stewart for his enlightening comments. He asked Judge Stewart if he were familiar with the Louisiana constitution, which had been rewritten during the 1970s. He asked Judge Stewart if all states that had amendment by initiative were inundated with constitutional amendments on the ballot. REP. KOTT also questioned Judge Stewart on specific provisions of the California constitution. Number 608 JUDGE STEWART indicated that he could not answer Rep. Kott's questions and noted that his lack of expertise was precisely the reason why he was urging the committee to consult with experts. Number 610 REP. PHILLIPS also thanked Judge Stewart for his lesson in political science. She complimented Judge Stewart's suggestion that a Constitutional Revision Commission be created. Number 621 CHAIRMAN PORTER thanked Judge Stewart for addressing the committee. He related an anecdote from his days as a regulation writer, when a co-worker told him that he should "eschew obfuscation." He noted that Judge Stewart's example of the budget reserve fund constitutional amendment was very appropriate, as the committee was considering a bill, the purpose of which was to clear up ambiguity resulting from that amendment. REP. DAVIDSON expressed his appreciation for Judge Stewart's work on the Alaska constitution and for raising alarm about the seriousness of HJR 1. He said he hoped that the issue would be seriously researched before the legislature acted upon it. Number 661 CHAIRMAN PORTER appointed a subcommittee of Rep. Phillips, Rep. Green, and Rep. Nordlund to research HJR 1 and the possible formation of a Constitutional Revision Commission. He asked the subcommittee to report back to the committee in three weeks. Number 674 REP. DAVIDSON asked that the full committee be given the opportunity to hear from constitutional experts and from those knowledgeable about the experience that California had had with the amendment by initiative process. CHAIRMAN PORTER commented that he would ask that the subcommittee publicize meetings where testimony of that nature would be taken so that the rest of the committee could attend those meetings. Number 688 REP. KOTT reiterated his appreciation for Judge Stewart's remarks. He asked if any other constitutional drafters were still alive. He also asked if Judge Stewart would be willing to chair a Constitutional Revision Commission, if one were formed. Number 693 JUDGE STEWART said that there were delegates to and advisors for the Constitutional Convention who were still alive. Number 734 REP. PHILLIPS commented that two years before there had been a meeting of all of the remaining drafters of the constitution. Number 741 REP. KOTT again asked Judge Stewart if he would chair a Constitutional Revision Commission. Number 744 JUDGE STEWART said that he would be willing to chair the Commission, but due to his age, the committee ought to consider others for that role. Number 748 REP. KOTT distributed some additional materials relating to HJR 1 to the other members. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 2:45 p.m.
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