Legislature(1999 - 2000)

03/22/1999 01:08 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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HJR 3  - CONST. AM: WILDLIFE INITIATIVES                                                                                        
HJR 7  - CONST. AM: INITIATIVE/REFERENDUM PETITIONS                                                                             
HJR 25 - CONST. AM: FISH & WILDLIFE INITIATIVES                                                                                 
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN announced the first order of business in                                                                
HJR 3, Proposing an amendment to the Constitution of the State of                                                               
Alaska relating to initiatives regarding natural resources                                                                      
belonging to the state; HJR 7, Proposing an amendment to the                                                                    
Constitution of the State of Alaska relating to initiative and                                                                  
referendum petitions; and HJR 25, Proposing an amendment to the                                                                 
Constitution of the State of Alaska relating to a petition for an                                                               
initiative or referendum regarding fish or wildlife.                                                                            
                                                                                                                                
Number 0131                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT asked Chairman-designee Green whether it is                                                                
his intention to move the bills out of committee today.                                                                         
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN replied yes, unless someone brings it to                                                                
his intention that there is a problem with them constitutionally or                                                             
legally - the purview of this committee.  Whether or not they                                                                   
should go to the House floor is under the purview of a different                                                                
committee.                                                                                                                      
                                                                                                                                
Number 0177                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated Representative Williams' resolution                                                                 
[HJR 7] has the most persuasive argument and for that reason he                                                                 
doesn't think the approach of Representative Bunde (HJR 3) and                                                                  
Representative Ogan [HJR 25] is right.  Under the purview of this                                                               
committee, there isn't anything unconstitutional or legally infirm                                                              
about the resolutions.  It is a policy choice.  For those reasons,                                                              
he is opposed to HJR 3 and HJR 25; HJR 7 presents a closer call.                                                                
                                                                                                                                
Number 0293                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI agrees that Representative Williams'                                                                   
resolution is very different than Representative Bunde's in terms                                                               
of where the bar is set.  Representative Williams' resolution talks                                                             
about the collection of signatures, while Representative Bunde's                                                                
resolution talks about the actual vote.  They are two very distinct                                                             
resolutions; and, unfortunately, since they were lumped together at                                                             
the last hearing they are being viewed as the same.                                                                             
                                                                                                                                
Number 0367                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA stated all three resolutions present                                                                    
significant policy problems.  House Joint Resolution 3 and HJR 25                                                               
present issues that should be discussed at a constitutional                                                                     
convention, especially since HJR 25 fully removes something that                                                                
the public had been able to do previously.  She also has concerns                                                               
about HJR 7.                                                                                                                    
                                                                                                                                
Number 0430                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN asked Representative Kerttula whether she                                                               
feels that none of the three resolutions pose a legal problem, but                                                              
instead a policy call.                                                                                                          
                                                                                                                                
REPRESENTATIVE KERTTULA replied HJR 3 and HJR 25 may have legal                                                                 
problems and should be part of a constitutional convention.  It                                                                 
won't be known, however, until the end of the "court case."                                                                     
                                                                                                                                
Number 0461                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI stated she is not certain whether the                                                                  
committee has adopted the proposed committee substitute.  It was                                                                
indicated in the affirmative that the committee adopted it at the                                                               
last hearing.                                                                                                                   
                                                                                                                                
Number 0505                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move HJR 3 from the                                                                    
committee with individual recommendations and the attached fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
REPRESENTATIVE CROFT objected.  A roll call vote was taken.                                                                     
Representatives Green, Rokeberg and Murkowski voted in favor of the                                                             
motion.  Representatives Croft and Kerttula voted against the                                                                   
motion.  The motion failed by a vote of 3-2.  House Joint                                                                       
Resolution 3 failed to move from the House Judiciary Standing                                                                   
Committee.                                                                                                                      
                                                                                                                                
Number 0619                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 1:17 p.m. and                                                             
called the meeting back to order at 1:26 p.m.                                                                                   
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted the arrival of Representative James.                                                              
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted, in failing to pass HJR 3 out of                                                                  
committee, it is still before the committee.  He asked                                                                          
Representative Croft to explain his objection.                                                                                  
                                                                                                                                
Number 0653                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT stated he is not positive that the initiative                                                              
process is broken.  There have been initiatives on the ballots that                                                             
he has agreed with and there have been initiatives on the ballots                                                               
that he has disagreed with.  But, it has generally worked to effect                                                             
the will of the people.  There isn't a two-thirds voting                                                                        
requirement of the people for the other provisions and he is not                                                                
convinced that it should be a requirement for natural resources.                                                                
If there is something broken, it seems to be how an initiative gets                                                             
to the ballot rather than requiring a super majority for one                                                                    
particular area.  In addition, he is worried that if all three                                                                  
resolutions go to the ballot it will be very confusing.  If any of                                                              
the approaches have merit, it is a permutation of HJR 7.  He                                                                    
maintained his objection.                                                                                                       
                                                                                                                                
Number 0743                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA agrees with Representative Croft.  She                                                                  
reiterated she has constitutional concerns about HJR 3 and HJR 25                                                               
because they completely remove a right, especially HJR 25, and                                                                  
there might need to be a constitutional convention rather than an                                                               
amendment.                                                                                                                      
                                                                                                                                
Number 0815                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN indicated the objection is maintained.  A                                                               
second roll call vote was taken.  Representatives Green, Rokeberg,                                                              
James and Murkowski voted in favor of the motion.  Representatives                                                              
Croft and Kerttula voted against the motion.  The motion passed by                                                              
a vote of 4-2.  House Joint Resolution 3 was so moved from the                                                                  
House Judiciary Standing Committee.                                                                                             
                                                                                                                                
Number 0857                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA stated there was quite a bit of testimony                                                               
indicating that 10 percent of those who voted in the preceding                                                                  
general election within each house district would be difficult to                                                               
meet.  She has empathy with ensuring that the entire state is                                                                   
involved in the process, but nobody wants to see the process close                                                              
down.  She offered an amendment to change "10 percent" to "2                                                                    
percent".                                                                                                                       
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN objected for discussion purposes.                                                                       
                                                                                                                                
Number 0925                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES shares the same concern, but 10 percent is too                                                             
high and 2 percent is too low.  She is not sure what the figure                                                                 
should be, however.  The right number is somewhere between 1 person                                                             
from each house district and 10 percent.  She would accept                                                                      
something bigger, but she will not vote for 2 percent.  In                                                                      
addition, it only calls for 30 out of the 40 house districts.  The                                                              
less difficult districts to travel to could be used to get the                                                                  
signatures.                                                                                                                     
                                                                                                                                
Number 1019                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted that the average turnout is about                                                                 
5,000 per district or lower which would only be 500 signatures.  He                                                             
is reluctant to allow the current system because it allows the Rail                                                             
Belt to have so much influence.  The bar should also be high enough                                                             
so that the ballots are not cluttered each year with resolutions.                                                               
He maintains leaving it at 10 percent.                                                                                          
                                                                                                                                
Number 1145                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI likes Representative Williams' suggestion                                                              
of going to all areas of the state.  Other states require 8 percent                                                             
with a signature gathering period of 90 to 150 days.  Although 10                                                               
percent may be higher, there is a one-year period to collect                                                                    
signatures here in Alaska.  She is concerned about the outside                                                                  
organizations that have targeted Alaska as a cheap place to get                                                                 
something on a ballot.  It is not like years ago when everybody in                                                              
the neighborhood was packing around a petition.  Nowadays, petition                                                             
gathers are paid good money and are organized by outside                                                                        
corporations.  She supports HJR 7 and is comfortable with going as                                                              
high as 10 percent.                                                                                                             
                                                                                                                                
Number 1272                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 1:38 p.m. and                                                             
called the meeting back to order at 1:40 p.m.                                                                                   
                                                                                                                                
Number 1278                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT noted that this pertains to both initiatives                                                               
and referendums which are important rights.  He doesn't know how                                                                
receptive the public will be on restricting its power to decide                                                                 
issues via the initiative process and correct the legislature via                                                               
the referendum process.  The referendum process is an area that the                                                             
legislature ought to be very careful before touching, given that it                                                             
is the public's last recall on what the legislature does.  Maybe,                                                               
there ought to be a policy of not touching it.  It is not used very                                                             
often and when it is, it is obvious that the people feel seriously                                                              
that the legislature has erred.  He said, "It may not be for us to                                                              
tell them how they get that done."                                                                                              
                                                                                                                                
Number 1358                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG noted that referendum is referred to in                                                                 
Article XI, section 5 of the state constitution, and the resolution                                                             
only deals with Article XI, section 3.                                                                                          
                                                                                                                                
Number 1387                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES stated it is important to recognize that                                                                   
Alaska has 365 million acres of land with a very small population                                                               
of which nearly half lives in the Anchorage Bowl.  That calls for                                                               
outreach to ensure the folks in the less populated areas are not                                                                
left out, even though this might not be a good idea for other                                                                   
states.  Once an initiative is on the ballot and it represents                                                                  
those in the Anchorage Bowl, it will pass, and the rest of the                                                                  
votes from the rest of the people will mean nothing.  She still                                                                 
thinks 10 percent is too high, especially since there is a low                                                                  
voter turnout in some of the rural areas and it will be some time                                                               
before there are more people in those areas.                                                                                    
                                                                                                                                
Number 1587                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Representative James what was the                                                                
discussion in the House State Affairs Standing Committee regarding                                                              
the percentages.                                                                                                                
                                                                                                                                
REPRESENTATIVE JAMES replied it was similar to today's discussion,                                                              
but there wasn't the same type of public testimony.  There was a                                                                
motion to make it 5 percent, but it didn't pass.  The committee                                                                 
decided on 10 percent.                                                                                                          
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Representative James whether the                                                                 
original bill called for 15 percent.                                                                                            
                                                                                                                                
REPRESENTATIVE JAMES replied yes.                                                                                               
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted that the objection is maintained.  A                                                              
roll call vote was taken.  Representatives Green, Rokeberg and                                                                  
James voted against the motion.  Representatives Murkowski, Croft                                                               
and Kerttula voted in favor of the motion.  The motion failed by a                                                              
vote of 3-3.                                                                                                                    
                                                                                                                                
Number 1668                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES made a motion to move CSHJR 7(STA) from the                                                                
committee with individual recommendations and the attached fiscal                                                               
note(s).                                                                                                                        
                                                                                                                                
REPRESENTATIVE CROFT objected.  A roll call vote was taken.                                                                     
Representatives Green, Rokeberg, James and Murkowski voted in favor                                                             
of the motion.  Representatives Croft and Kerttula voted against                                                                
the motion.  The motion passed by a vote of 4-2.  The CSHJR 7(STA)                                                              
was so moved from the House Judiciary Standing Committee.                                                                       
                                                                                                                                
Number 1747                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 1:50 p.m. and                                                             
called the meeting back to order at 1:51 p.m.                                                                                   
                                                                                                                                
Number 1750                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move CSHJR 25(JUD) from                                                                
the committee with individual recommendations and the attached                                                                  
fiscal note(s).                                                                                                                 
                                                                                                                                
REPRESENTATIVE CROFT objected.                                                                                                  
                                                                                                                                
REPRESENTATIVE CROFT noted that there is legitimate concern about                                                               
HJR 25, but the people are smart enough to sort it out.  The                                                                    
distinction between the aerial wolf hunt and the wolf snaring                                                                   
initiatives prove that point.  The people were able to see the                                                                  
difference between prohibiting an act that didn't comport with a                                                                
fair chase and protecting a lifestyle choice.  He doesn't believe                                                               
that taking it off the plate is appropriate.                                                                                    
                                                                                                                                
Number 1825                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES stated there is no comparison between the two                                                              
initiatives because shooting wolves from an airplane was already                                                                
illegal.  The people couldn't tell the difference.  The                                                                         
advertisements influenced the votes and didn't have anything to do                                                              
with reality.  To say that the people can sort it out is a good                                                                 
argument, if there is a level playing field for both sides.  The                                                                
boards are the best system to manage fish and game, until someone                                                               
can come up with a better one.  The initiative process is not it.                                                               
There are flaws with the initiative process.  It doesn't have a                                                                 
public process.  It doesn't have the committees and the testimony                                                               
that the legislative process has.  She sympathizes with the folks                                                               
that want to do something and the legislature simply doesn't listen                                                             
to them so they turn to the initiative process.  She supports that                                                              
as a method of passing statutory law, but the valuable resources                                                                
such as fish and game need the public, committee and legislative                                                                
processes.  "If we want to have a better system of managing fish                                                                
and game, then we should statutorily change the management--the                                                                 
whole management, not just specific management of specific game and                                                             
specific fish."                                                                                                                 
                                                                                                                                
Number 1944                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA noted that this is a representative                                                                     
democracy and the initiative process is probably the cleanest and                                                               
most public oriented part of it because once an initiative is on                                                                
the ballot everybody has the right to vote on it.  She is concerned                                                             
about restricting that process since people in Alaska feel strongly                                                             
about natural resource issues.  It is also ironic to see the people                                                             
who supported "the resolution" that failed coming in to change the                                                              
process.                                                                                                                        
                                                                                                                                
Number 1983                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES understands that this is a representative form                                                             
of democracy, but the representative part of government is "out the                                                             
window" when going to an initiative because each district loses its                                                             
voice when the "water is muddy."  Once an initiative is on the                                                                  
ballot, the votes are in Anchorage.  "I don't if you heard that or                                                              
not, but that's where they are."                                                                                                
                                                                                                                                
REPRESENTATIVE KERTTULA replied she heard the testimony.                                                                        
                                                                                                                                
Number 2029                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG favors HJR 25 because Article VIII, section                                                             
2 of the state constitution clearly sets forth the legislature's                                                                
responsibility in providing for the utilization, development and                                                                
conservation of all natural resources belonging to the state for                                                                
the maximum benefit of the people.  The power is reserved to the                                                                
legislature.  He said, "I'm very concerned that the type of                                                                     
initiatives that have occurred...And, I think the point's well                                                                  
taken that with enough money and the changing demographics in this                                                              
state where people don't have the traditions of hunting and fishing                                                             
and gathering that we've had here for years, that we would put in                                                               
jeopardy to a very large investment by an outside interest group                                                                
that could gradually change our culture.  And, I'm not willing to                                                               
take that risk entirely.  Notwithstanding the sound arguments on                                                                
the other hand for the voice of the people.  And, Mr. Chairman, I                                                               
think that this--if we don't do something it could be the end of                                                                
commercial fishing in the state of Alaska.  If you look at the                                                                  
number of commercial fishers versus the growing power and                                                                       
importance of sport fishery, and I think justifiably so in certain                                                              
instances, but if we end up by ballot box animal husbandry and                                                                  
theological choices, I think we're going to be wronged."  He will                                                               
vote yes.                                                                                                                       
                                                                                                                                
Number 2098                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI is concerned that HJR 25 is closer to a                                                                
revision of the constitution as opposed to an amendment.  It is                                                                 
completely taking away the ability of the people to vote on fish                                                                
and wildlife issues.  It takes the state closer to the need for a                                                               
constitutional convention.  She is not comfortable with that.                                                                   
                                                                                                                                
Number 2141                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN called for a brief at-ease at 2:00 p.m. and                                                             
called the meeting back to order at 2:02 p.m.                                                                                   
                                                                                                                                
Number 2148                                                                                                                     
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted that Representative Murkowski brings                                                              
up a very good point.  He referred to a memorandum from Legislative                                                             
Legal Services dated March 19, 1999 which states that all three                                                                 
resolutions are constitutional as a method of eliminating                                                                       
initiatives, and that they probably won't go to the point that the                                                              
state supreme court went to in Bess v. Ulmer.                                                                                   
                                                                                                                                
Number 2212                                                                                                                     
                                                                                                                                
REPRESENTATIVE JAMES stated the Bess case affected several parts of                                                             
the constitution.  She asked what other part of the constitution                                                                
would HJR 25 affect.                                                                                                            
                                                                                                                                
Number 2233                                                                                                                     
                                                                                                                                
KEVIN JARDELL, Legislative Assistant to Representative Joe Green,                                                               
Alaska State Legislature, stated that testimony on Bess v. Ulmer                                                                
indicates it is difficult to determine what will be a revision and                                                              
what will be an amendment.  There were three constitutional                                                                     
amendments before the Alaska Supreme Court, and it found that two                                                               
were amendments and one was a revision.  The revision on a scale of                                                             
1 to 10 of how much it affects the constitution was a 10.  It                                                                   
affected almost every aspect of the constitution.  The four-part                                                                
test, the extent that it affects the whole constitution and a                                                                   
person's understanding of the implications of an amendment, was                                                                 
laid down in that case.                                                                                                         
                                                                                                                                
Number 2299                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG asked Mr. Jardell whether any                                                                           
constitutional amendment with any degree of controversy would be                                                                
challenged in court prior to going to the ballot because of the                                                                 
Bess case as a matter of course.                                                                                                
                                                                                                                                
MR. JARDELL replied it is safe to say that the supreme court could                                                              
find factual determinations to make a decision on a challenge.  It                                                              
is really hard to allow Bess to determine which resolution should                                                               
go forward.  It is a preliminary case and it will take further case                                                             
law to narrow down what is a revision and what is an amendment,                                                                 
unless the supreme court gives a bright-line test, which is not                                                                 
expected.                                                                                                                       
                                                                                                                                
Number 2347                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG noted the only thing that could dissuade                                                                
counsel from introducing lawsuits is the Senate Finance Standing                                                                
Committee.                                                                                                                      
                                                                                                                                
Number 2373                                                                                                                     
                                                                                                                                
CORY WINCHELL, Administrative Assistant to Representative Pete                                                                  
Kott, Alaska State Legislature, stated that the memorandum dated                                                                
March 19, 1999 from Legislative Legal Services talks about the                                                                  
powers enumerated by the legislature and the Bess decision.  The                                                                
courts have been slicing away at the initiative process in regards                                                              
to natural resources, fish, and wildlife for about 20 years now.                                                                
They have made inroads.  The courts didn't want ballot-box voting                                                               
for allocation issues such as fish stocks, mining, natural                                                                      
resources, etc.  The memorandum indicated, based on legal precedent                                                             
available in this state, that the legislature has the power to                                                                  
propose a constitutional amendment that would, if approved by the                                                               
people, reduce the power of the people to enact laws relating to                                                                
fish and game by initiative.                                                                                                    
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted it sounds Draconian.                                                                              
                                                                                                                                
Number 2451                                                                                                                     
                                                                                                                                
REPRESENTATIVE ROKEBERG made a motion to move CSHJR 25(JUD) from                                                                
the committee with individual recommendations and the attached                                                                  
fiscal note(s).                                                                                                                 
                                                                                                                                
REPRESENTATIVE CROFT objected.                                                                                                  
                                                                                                                                
TAPE 99-16, SIDE B                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE CROFT continued.  There is confusion on the Bess                                                                 
case because of expansiveness.  The prisoners' rights proposed                                                                  
amendment affected everything.  The supreme court eliminated the                                                                
sentence that said, "No provision of this constitution may be                                                                   
interpreted to require the State to recognize or permit marriage                                                                
between individuals of the same sex.", in the marriage proposed                                                                 
amendment.  The redistricting proposed amendment affected nine                                                                  
different provisions of the state constitution, but the supreme                                                                 
court said it was understandable.  Therefore, he is not sure                                                                    
whether there will be that much trouble with this case.  It is not                                                              
going to be a huge burden.                                                                                                      
                                                                                                                                
CHAIRMAN-DESIGNEE GREEN noted that the objection is maintained.  A                                                              
roll call vote was taken.  Representatives Green, Rokeberg, James                                                               
and Murkowski voted in favor of the motion.  Representatives Croft                                                              
and Kerttula voted against the motion.  The motion passed by a vote                                                             
of 4-2.  The CSHJR 25(JUD) was so moved from the House Judiciary                                                                
Standing Committee.                                                                                                             

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