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 11: REPEAL OF REGULATIONS BY LEGISLATURE CHAIRMAN PORTER noted that Rep. Phillips had been called away, but said her aide, Sandy Nusbaum, would appear before the committee to testify on HJR 11. Number 191 SANDY NUSBAUM, LEGISLATIVE AIDE TO REP. GAIL PHILLIPS, read Rep. Phillips' testimony on HJR 11. (A copy is on file in the House Judiciary Committee.) Ms. Nusbaum said that HJR 11 was a proposal to place a constitutional amendment before the voters that would allow the legislature to take action on regulations promulgated by state agencies that might not properly implement laws passed by the legislature. MS. NUSBAUM mentioned that the 1st Alaska Legislature allowed for annulment of regulations, but a 1980 Supreme Court decision held that the legislature could overturn regulations by passing a bill. However, she noted that a bill could be vetoed by the governor or repealed by a referendum. A resolution annulling a regulation could not. MS. NUSBAUM added that adoption of a joint resolution annulling a regulation would require the approval of a simple majority of each chamber. She commented that many regulations did conform to and support laws passed by the legislature, but sometimes regulations went far beyond the scope and intent of the law. MS. NUSBAUM said that she often recommended that legislators look at the regulations that had been adopted to conform with their own bills that had been enacted into law. She noted that most legislators never looked at the regulations. MS. NUSBAUM stated that once in effect, regulations had all the force of law, although no elected officials had approved them. She said that Rep. Phillips believed that the framers of the Alaska constitution never intended that any governmental body, except the legislature, had the power to make laws. MS. NUSBAUM spoke of the system of checks and balances in our system of government. One area that lacked those checks and balances was that of administrative regulations. She said HJR 11 would add regulations to the areas of government that were part of the checks and balances system. MS. NUSBAUM said that this resolution had been before the 17th Alaska Legislature. It passed the Senate unanimously, was reported out of the House State Affairs and House Judiciary Committees with unanimous "do pass" recommendations, and received an endorsement from the Joint Committee on Administrative Regulation Review. It failed to be taken up for a vote on the House floor in the final minutes of the session. MS. NUSBAUM called the members' attention to the back-up materials provided in their packets. She mentioned that statements in past voters' pamphlets regarding this proposed amendment to the constitution were poorly written and difficult for the voters to understand. She stated that she understood that the attorney general was opposed to HJR 11, but Lt. Governor Coghill, one of the framers of the Alaska constitution, supported the measure. MS. NUSBAUM said that a small fiscal note was attached to HJR 11 - $2.2 thousand dollars to place the measure on the ballot. She offered to answer any questions the members might have. Number 298 REP. KOTT asked if the House held a floor vote on the measure last year. Number 302 MS. NUSBAUM said that the measure did not receive a floor vote. She noted that it was killed within a minute and a half of adjournment, for political reasons. Number 309 REP. DAVIDSON asked Ms. Nusbaum if HJR 11 would put a great deal of administrative work before the legislature. Number 316 MS. NUSBAUM said she thought that the opposite would be true: the volume of regulations filed by the state agencies would be reduced. Number 319 REP. DAVIDSON asked Ms. Nusbaum why she believed this to be the case. Number 320 MS. NUSBAUM replied that this measure would make agencies think twice before promulgating regulations. Number 333 REP. DAVIDSON asked Ms. Nusbaum if she felt that HJR 11 would alter our government's system of checks and balances. Number 338 MS. NUSBAUM said that it depended on whose checks and balances Rep. Davidson was concerned with protecting: the legislature's or those of the executive branch. She said that when the administrative regulation system was first put into place, it was called "policies and procedures." A bill became law and the agencies came up with a system for implementing that law. Now the implementation was more law than policies and procedures, she said. Ms. Nusbaum added that agency personnel did not have the last word on the regulations, but the Department of Law did. Number 356 REP. DAVIDSON asked if HJR 11 would place the legislature in an enforcement role as well as a policy making role. Number 366 MS. NUSBAUM responded that when regulations were more stringent than their governing statutes, the legislature should have the right to repeal them. Number 372 REP. NORDLUND requested that Ms. Nusbaum give the committee some examples of regulations that did not carry out legislative intent or that went beyond the authority of their governing statutes. Number 378 MS. NUSBAUM mentioned regulations pertaining to corporal punishment in schools. She commented that it should not require a hue and cry from the public and the legislature to get agencies to back off from certain regulations. She said that Lt. Governor Coghill could cite examples from the Water Quality Act and the Mining Act as well. MS. NUSBAUM asked Rep. Davidson if he had ever gone back and looked at regulations which pertained to his bills that had been enacted into law. Number 393 REP. DAVIDSON said that he had done so. MS. NUSBAUM asked Rep. Davidson if he felt good about those regulations. REP. DAVIDSON noted that he felt that the agencies had done an incomplete job of dealing with the most recent water bill that he had passed, because they had only implemented regulations for those provisions that they supported. Number 400 CHAIRMAN PORTER asked Ms. Nusbaum if she were aware of how many other states had provisions similar to HJR 11 in place. Number 401 MS. NUSBAUM said that she did not know the answer to Chairman Porter's question. Number 411 MS. HORETSKI called the members' attention to a letter in their packets from the Department of Law opposing HJR 11. Number 418 CHAIRMAN PORTER called a brief at-ease while the committee members reviewed the letter. Number 451 REP. GREEN moved that HJR 11 be passed out of committee with individual recommendations. Number 455 REP. DAVIDSON and REP. NORDLUND objected. Number 457 REP. NORDLUND indicated that he, as a member of the legislature, would probably support HJR 11. He stated that he believed there were incidences of regulations written beyond the intent of their governing statutes. He noted his fear that HJR 11 could make the legislature less vigilant in its drafting of statutes, knowing that it was possible to tinker with the law later by overturning regulations. Number 477 REP. DAVIDSON commented that when the legislature did not get its way, it simply went back and changed the statutes. He said that he liked the system the way it was, as it forced the legislature to write tight statutes. He stated that the voters of Alaska had shown repeatedly over the last 13 years that legislative repeal of regulations was not a good idea. The legislature did its part, he added, and other sections of government did their parts. The legislature might not like what the other arms of government did, he said, but the legislature's response ought to be to do its part more carefully. REP. DAVIDSON stated that the resolution should be brought back before the committee for more discussion and testimony. He indicated that he would like to hear from constitutional law experts on the issue. He said HJR 11 could be a momentous change to our government and thus merited a great deal more discussion. Number 512 REP. GREEN commented that he felt that HJR 11 was long overdue. If the legislature passed a law and a state agency misinterpreted that law, there should be a mechanism for overturning the misinterpretation, he said. He noted that a misinterpretation might signify a flaw in the statute. Rep. Green said HJR 11 would give the legislature the opportunity to discuss the intent of the law with the regulation drafters. Number 539 REP. KOTT stated that he agreed with Rep. Green. He noted that given the opportunity, many agency officials might exceed the intent of the legislature to address their own personal agendas. He said that HJR 11 would place a check on those officials. Obviously, he added, the legislature was not able to restrict regulation writers too much. But, he said, he felt HJR 11 would prevent agency officials from stepping out of bounds. Number 555 REP. DAVIDSON commented that the legislature had the responsibility to make laws that people could understand and that were tight enough to prevent bureaucrats from going against the lawmakers' wishes. He added that to take power from other government arms and give it to the legislature was a bad idea. He said it was easy to put the hammer down on bureaucrats who found it impossible to do anything right, because different groups wanted things done in completely opposite ways. He reiterated that the current system in place was a good one. Number 585 REP. GREEN replied that he felt it was not the legislature's intent to pass power to the regulation drafters. The regulations should mirror the intent of their governing statutes, he noted. The check provided by HJR 11 was needed, he asserted. Number 600 REP. DAVIDSON commented that the legislature's power came from the people who sat in the witness chair and called the legislators on the telephone to explain problems that existed in the state. Number 606 CHAIRMAN PORTER indicated his intention to support HJR 11. He said he felt that regulatory authority was quasi- legislative and was a delegation of the legislature's authority to the executive branch. He commented that the legislature should maintain that authority through control of regulations. He added that he saw HJR 11 as a means by which to do that. CHAIRMAN PORTER noted that Rep. Phillips had rejoined the committee. A roll call vote to pass HJR 11 out of the Judiciary Committee was taken, with the result of five yeas and one nay. Chairman Porter announced HJR 11 was passed out of committee with individual recommendations. CHAIRMAN PORTER announced that HJR 1, relating to the amendment of the constitution by initiative, was the next item of business before the committee.
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