Legislature(1999 - 2000)

04/28/1999 01:20 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                    
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                                                               
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                                                              
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                                                                 
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                                                                      
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                                                                   
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                                                               
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.                                                                

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