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