Legislature(2005 - 2006)CAPITOL 120
04/18/2005 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Attorney General of Alaska | |
| Board of Governors of the Alaska Bar | |
| HB257 | |
| HB133 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 257 | TELECONFERENCED | |
| += | HB 133 | TELECONFERENCED | |
| + | HB 92 | TELECONFERENCED | |
| + | HB 177 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 133 - LOCAL BOUNDARY COMMISSION REGS & POWERS 3:28:36 PM CHAIR McGUIRE announced that the final order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 133, "An Act relating to incorporation of boroughs and to regulations of the Local Boundary Commission to provide standards and procedures for municipal incorporation, reclassification, dissolution, and certain municipal boundary changes; and providing for an effective date." [Before the committee was CSSSHB 133(STA).] RYNNIEVA MOSS, Staff to Representative Coghill, Alaska State Legislature, sponsor of SSHB 133, said on behalf of Representative Coghill that the bill originally did one thing, which was to say that any regulations that are adopted by the Local Boundary Commission have to be consistent with state statute. This concept was engendered by the discovery of a regulation that allowed for an aggregate vote to be used to annex land into a borough. State law, however, requires the annexation of land into a borough to be decided at an election of the voters living in the area to be annexed, and it must pass by a majority vote. She explained that the aggregate vote allows all the residents, both of the area to be annexed as well as of the existing borough, to vote, and if, via that combined vote, it is approved, the area could then be annexed. She clarified that SSHB 133 says that both the area to be annexed and the area of the existing municipality each have to approve annexation by a majority vote; this will eliminate the possibility of a "hostile takeover" of an un-annexed area by an existing municipality. MS. MOSS pointed out that Section 1 says that the Local Boundary Commission may not amend a petition or impose conditions on the incorporation, which, she said, is a change in statutory language, but noted that the constitution clearly says that the Local Boundary Commission will do "this" as prescribed by law, that being statutory law passed by the legislature. She turned attention to Section 2, and said that under current constitutional authority, the Local Boundary Commission can take a proposal to the legislature for its approval without a vote of the people; Section 2, in contrast, says that there needs to be at least two public hearings and that there should be a vote of the people. Ms. Moss noted that Legislative Legal and Research Services told her that Section 2 probably would not survive a constitutional challenge. She said that she had an amendment prepared that would take out the election provision so that the bill could withstand such a challenge. REPRESENTATIVE GRUENBERG commented that he had asked that this bill be referred to this committee specifically to deal with the constitutionality of the bill. He suggested that the language on page 2, line 5, "and shall notify the director of elections of the incorporation proposal", be deleted from the bill. REPRESENTATIVE COGHILL, speaking as the sponsor, said he would prefer to delete the language rather than approaching it from a severability issue because of the costs associated with trying to defend it. He said: I appreciate the severability issue, but I don't want the rest of the bill to get put in a place where a court can put the whole thing under a cloud when all I wanted was a simple, little fix. ... Under this bill we're testing the legislative authority against the boundary commission authority, and I'm asserting, rather strongly, legislative authority here. However, there [are] ... some real constitutional reasons for the boundary commission, and when we go back and we've studied it in the different committees that we've been in, I would be satisfied in taking this portion out because it still then allows two public hearings in a community, which, to me, ... kicks a door open for more public process. And then the vote wouldn't be required. 3:35:00 PM REPRESENTATIVE GRUENBERG agreed with Representative Coghill and therefore announced that he would not offer his amendment labeled 24-LS0512\Y.1, Cook, 4/13/05, which read: Page 3, following line 22: Insert a new bill section to read: "* Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to read: SEVERABILITY. Under AS 01.10.030, if any provision of this Act or the application of it to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances are not affected." Renumber the following bill section accordingly. REPRESENTATIVE GRUENBERG commented that he didn't see any serious problem with requiring the Local Boundary Commission to hold two public hearings. REPRESENTATIVE COGHILL noted that the Local Boundary Commission was amenable to having two hearings, but [language on page 2, line 5] became problematic. MS. MOSS relayed that former Lieutenant Governor Jack Coghill testified at a House State Affairs Standing Committee hearing during which he was asked about Section 1. She said that he offered his belief that the bill put into statute what the intent was of the constitutional convention. She commented, "I think those are some very strong words that support Representative Coghill's desire for the legislature to make sure that the Local Boundary Commission is not stepping out of ... [its] bounds." REPRESENTATIVE GRUENBERG explained that his [un-offered] amendment really just calls attention to the general severability statute, but it really doesn't add anything. He reiterated his belief that the committee should instead adopt Representative Coghill's suggested change. 3:37:00 PM REPRESENTATIVE GRUENBERG asked whether the Department of Law (DOL) would have any problem defending Section 1 of the bill. SARAH FELIX, Assistant Attorney General, Labor and State Affairs Section, Civil Division (Juneau), Department of Law (DOL), stated that she was attending the meeting on behalf of Marjorie Vandor, who is assigned to the Local Boundary Commission's work and who would be back in Juneau tomorrow. Ms. Felix stated that Ms. Vandor had said that she is concerned about Section 1 of the bill. Ms. Felix continued: [Ms. Vandor] indicated that the Local Boundary Commission is one of the few constitutionally created commissions, and that the framers expressed an intent that boundary decisions be made at a statewide rather than a local level because of the statewide interests in the municipal organization of Alaska. Case law, interpreting the Local Boundary Commission authority, has found that the commission has discretion to alter boundaries presented in incorporation petitions. ... Case law has also recognized the Local Boundary Commission's constitutionally-based authority. ... However, we know that not every issue has been decided. I mean, there has been some litigation concerning the authority of the Local Boundary Commission but there are still a lot of unanswered questions. The line dividing the Local Boundary Commission's constitutional authority and the legislature's authority to enact laws restricting the Local Boundary Commission's authority is not entirely clear. Existing precedent suggests that removing the Local Boundary Commission's authority to change boundaries in incorporation petitions raises a constitutional issue. MS. FELIX added: Ms. Vandor wanted me to stress that her reading of the constitutional debate indicates that the framers intended that the concept behind adopting the constitutional provision authorizing the [Local Boundary Commission] was that political decisions don't usually create proper boundaries and that boundaries should be established at the state level, and that the advantage of the method proposed in the constitution for the Local Boundary Commission lies in placing the process at a level where areawide or statewide needs can be taken into account, and that by placing that authority in this third party - the commission - the arguments for and against boundary changes can be analyzed objectively. 3:40:39 PM MS. MOSS noted that the case law is based on a state statute that this bill would change. She also pointed out that the constitution says that the [Local Boundary Commission] may consider any proposed local government boundary changes, but doesn't say that the commission can amend or alter it. She opined, "I think the legislature definitely, under the constitution, has the authority to change this statute and direct the Local Boundary Commission." She stated that Article XII, Section 11, [of the Alaska State Constitution] says that "by law" and "by the legislature" can be used interchangeably with regard to law-making powers; therefore, she concluded, "prescribed by law" doesn't mean the constitution or the Local Boundary Commission, but instead means statutes that are passed by the legislature. 3:41:42 PM EDGAR BLATCHFORD, Commissioner, Department of Commerce, Community, & Economic Development (DCCED), offered his apology for not advising the bill sponsor of the department's concerns sooner. He stated: The department has this obligation to be the advocate for the unorganized borough and to promote municipalities, whether they're cities or boroughs. And our concerns are that [the bill] reverses the Local Boundary Commission's authority to amend and impose conditions on the petition. We're concerned that the voters must first approve this annexation or detachment before the legislature can take action. We are also concerned that proposals for legislative review must first be approved by residents of the area. And we're concerned also that the annexation into existing boroughs and cities would be almost impossible or probably improbable without support of the annexed areas. As it is, it's unlikely that there would be any more organized governments in the unorganized borough, and the unorganized borough, we believe, can remain confident that until they decide to incorporate, an existing borough or city would not be able to attach them to their boundaries. And looking at the bill as it is ..., we believe this could impede development of natural resources. We believe too that as the bill ... stands now, ... it would hinder the assumption of the local responsibilities by local people. And we also believe ... that the bill could prevent local people from seizing the opportunities that come with local government. COMMISSIONER BLATCHFORD noted that he had not seen any of the proposed [amendments]. REPRESENTATIVE COGHILL relayed that the following language in Section 2 will be removed if the committee agrees: and shall notify the director of elections of the incorporation proposal. Within 30 days after notification, the director of elections shall order an election in the proposed borough area to determine whether the voters desire incorporation. Only if the voters approve the incorporation may the Local Boundary Commission submit the proposal to the legislature REPRESENTATIVE COGHILL went on to say: I think we need to organize in Alaska. We need to organize in boroughs. But the [Alaska State] Constitution has allowed for unorganized and organized boroughs. It also said that as we begin to populate and become an economy, that we are to be considered organization along several different criteria. And so we set up a boundary commission to help us figure those things out. But at the end of the day, it's going to be based on the law that we put together that respects the right of the individual voter. And it's our job to protect that. It's the administration's job to administer. So I can recognize their reluctance because they're going to advocate for a particular style that they've been doing. [The DCCED is] going to bring their proposals to us and here's the action that we have: ... that the only action that the legislature can do is disapprove something. That's a huge negative vote. Almost everything else we do in the legislature is affirmative with the exception of this one issue. So it gives the Local Boundary Commission a huge authority. And so the authority then has to be carefully crafted by law. And so I understand that [the DCCED is] concerned about it, but ... [our] constitutional duty is to make sure that the individual voters in those areas are not forced into a government that they don't want. ... We want a larger agency looking at the need to organize. 3:48:13 PM DEBBIE THOMPSON stated that she is a concerned resident of a subdivision in Union Bay, near Meyers Chuck. She stated that she strongly believes that the best way to reflect the desires of the community is to be able to let the people of the communities vote on the issues rather than just bypassing them to go to the legislature. 3:49:56 PM VIOLA JERREL, Ph.D., Alaskans Opposed to Annexation, stated that she was also speaking for Doris Cabana. She testified in support of SSHB 133 and said: "Regarding any attachments or annexations, we want a vote of the people only in the area that a city or another group is trying to annex. We do not want a combined vote; we do not want an aggregate vote." She noted that she and Doris Cabana hired Attorney Robert C. Erwin, who is a former Alaska Supreme Court justice, to oppose annexation by the City of Homer. She further noted that a superior court judge in Anchorage remanded the Homer annexation case back to the Local Boundary Commission to consider the effect that the Homer annexation of 4.58 square miles had on the Kachemak Emergency Service Area of 214 miles. DR. JERREL referred to a meeting of the Local Boundary Commission on January 5, 2005, during which the City of Homer Annexation Remand was on the agenda, and offered the following as a statement purportedly made at that meeting by Commissioner Robert Harcharek: I strongly believe that the judicial system was totally out of line in remanding us to rehear this action. It is not in the administrative code, it's not a part of our legislative procedures. ... I feel that if we're going to send a message, it's to tell the judges to stay the hell out of it because it has nothing for them to do with it. DR. JERREL opined that this statement by Commissioner Harcharek was illegal and inappropriate. DR. JERREL expressed her belief that the current Local Boundary Commission is not following the order of the court and therefore the members need to be replaced. She continued: "Public money cannot be used to deny people the due process of law. The United States Constitution is the supreme law of the land and everyone has to go by it, including the judges. The Local Boundary Commission has to go by it. They have to be replaced." 3:53:50 PM CHAIR McGUIRE closed public testimony on SSHB 133. REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, which read [original punctuation provided]: Page 2, line 5: After the word "incorporation" Delete all language through line 9, except the period. REPRESENTATIVE COGHILL said that Amendment 1 "takes the election out of it but leaves the public comment hearing in it." CHAIR McGUIRE asked whether there were any objections to Amendment 1. There being none, Amendment 1 was adopted. 3:54:42 PM REPRESENTATIVE GRUENBERG moved to report CSSSHB 133(STA), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSSSHB 133(JUD) was reported from the House Judiciary Standing Committee.
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