Legislature(1999 - 2000)

02/01/1999 01:04 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HJR 3 - CONST. AM:  WILDLIFE INITIATIVES                                                                                        
Number 029                                                                                                                      
CO-CHAIR OGAN again brought before the committee House Joint                                                                    
Resolution No. 3, proposing an amendment to the Constitution of                                                                 
the State of Alaska relating to initiatives regarding natural                                                                   
resources belonging to the state.  He asked Tamara Cook to brief                                                                
the committee on whether this could be interpreted by the supreme                                                               
court as a revision, rather than as an amendment.                                                                               
Number 054                                                                                                                      
TAMARA COOK, Director, Legislative Legal and Research Services,                                                                 
Legislative Affairs Agency, told members that last year before                                                                  
the election a suit was brought involving three proposed                                                                        
constitutional amendments that the legislature was seeking to                                                                   
have placed on the general ballot.  Of those three, the supreme                                                                 
court ordered that one not appear on the ballot; that the second                                                                
one appear on the ballot as written; and that the third one                                                                     
partially appear on the ballot, with the last sentence deleted.                                                                 
MS. COOK said the basis for this decision was a distinction that                                                                
the supreme court found between the power of the legislature to                                                                 
suggest an amendment to the constitution and the notion that a                                                                  
revision must be accomplished in a constitutional convention.                                                                   
The court issued its ruling in time for the election ballots to                                                                 
be prepared.  Also at the time it issued what it designated as a                                                                
preliminary opinion, and the court indicated that a full opinion                                                                
would be following; however, that has not come out yet.  Ms. Cook                                                               
stated, "So, the obvious question that we're confronted with here                                                               
in the legislature is how to distinguish between an acceptable                                                                  
constitutional amendment, which the legislature has the power to                                                                
propose, and a change that is so broad that it would be deemed by                                                               
the court to be a revision of the constitution and therefore                                                                    
available only at a constitutional convention."                                                                                 
Number 087                                                                                                                      
MS. COOK told members the court basically said that changes that                                                                
are few, simple and independent can be considered amendments.  In                                                               
addition, there are factors it would look at.  First is whether                                                                 
the proposal is simple to express and understand.  Second is                                                                    
whether it is complete within itself.  Ms. Cook explained, "By                                                                  
that, I think the court means, 'Is there an either actual or                                                                    
implied change to other sections in the constitution that will                                                                  
result from the proposal in front of the court?'"  A third factor                                                               
is whether it relates to only one subject; Ms. Cook said it is                                                                  
interesting that the court appears to have adopted a single-                                                                    
subject test, which already applies to statutes but now seems to                                                                
apply on the constitutional amendment level.  The last factor is                                                                
whether it substantially affects numerous sections of the                                                                       
MS. COOK said although the court looks at those factors, it was                                                                 
very careful to say it would decide whether something is an                                                                     
amendment or a revision on a case-by-case basis.  She noted that                                                                
the court described a revision as being "a change that is                                                                       
sweeping."  Ms. Cook stated, "So, I suppose the court has left                                                                  
itself open the possibility to determine that even a very simple                                                                
change could be so sweeping from a practical effect - or a change                                                               
in policy might be so significant - that perhaps a court would                                                                  
find even a very simple constitutional change that met the four                                                                 
guidelines as still being sweeping in scope because of its                                                                      
effect.  And that's basically all we know right now.  We don't                                                                  
have the final opinion.  We don't have any other case law.  It's                                                                
the first time it's come up in our jurisdiction in this state; it                                                               
has come up in some other states, but it's hard to know how much                                                                
of the reasoning in those other cases our court will accept or                                                                  
rely on."                                                                                                                       
MS. COOK told members, "With respect to the proposal that you                                                                   
have before you in this committee, it appears that this one meets                                                               
the four criteria.  It ought to be acceptable as an amendment - a                                                               
proposed amendment - under the factors that the court                                                                           
articulated.  It leaves out that one little question about                                                                      
whether changing the power of initiative, in itself, from a                                                                     
policy point of view, is so sweeping a change that it would be a                                                                
revision.  But from all that I know from this preliminary                                                                       
opinion, the resolution that you're considering now would                                                                       
probably survive as a potential proposed amendment."                                                                            
Number 175                                                                                                                      
REPRESENTATIVE CON BUNDE, sponsor of HJR 3, noted that there had                                                                
been some reaction to the resolution suggesting it would be an                                                                  
"anti-anti-development initiative."  He pointed out that the                                                                    
sword cuts both ways, however, so that if people in a particular                                                                
district wanted to present an initiative that allowed some                                                                      
additional hunting of wolves or oil drilling, for example, it                                                                   
would have to meet this criteria.                                                                                               
REPRESENTATIVE BUNDE referred to a handout titled, "Initiatives                                                                 
Appearing on the Ballot in Alaska."  He noted that the same-day                                                                 
airborne hunting initiative in 1996 did not achieve a two-thirds'                                                               
majority either for or against it.  Similarly, two-thirds of the                                                                
voters did not reject the recent wolf snaring issue.                                                                            
Representative Bunde suggested that HJR 3 would increase public                                                                 
participation because the bar is raised, and it would certainly                                                                 
increase the amount of information disseminated, hopefully                                                                      
raising it to a more factual level.                                                                                             
Number 237                                                                                                                      
CO-CHAIR OGAN asked Patti Swenson to provide a brief overview of                                                                
how different states deal with this type of wildlife initiative.                                                                
PATTI SWENSON, Legislative Assistant to Representative Con Bunde,                                                               
Alaska State Legislature, referred to the third-from-last page in                                                               
the handout.  She told members that Utah seems to have the most                                                                 
recently passed legislation relating to wildlife initiatives,                                                                   
which passed by 56.1 percent of the vote.  Utah's law is very                                                                   
similar to Alaska's, and it is the one upon which Alaska's was                                                                  
CO-CHAIR OGAN asked whether Utah's law had been challenged in                                                                   
Number 280                                                                                                                      
REPRESENTATIVE BUNDE said that challenge has not, to his                                                                        
knowledge, been initiated, although it is anticipated.  He noted                                                                
that the attempt to limit access to the initiative process by                                                                   
having more stringent requirements for the signature gatherers                                                                  
was struck down by the U.S. Supreme Court as an infringement upon                                                               
the "right of political speech."                                                                                                
Number 320                                                                                                                      
JOEL BENNETT came forward to testify in opposition to HJR 3.  He                                                                
specified that he was speaking on his own behalf, but he informed                                                               
members he had served on the Board of Game for 14 years and had                                                                 
been co-chair of the successful initiative effort on Proposition                                                                
3 in 1996.  Mr. Bennett indicated he believes that initiative was                                                               
the genesis for HJR 3, which he opposes.  He referred to the                                                                    
extensive discussion at the constitutional convention, then said,                                                               
"We've been a state now for a lot of years with this provision in                                                               
place, and I don't see why it's necessary to change it."  He                                                                    
reminded members that of the two wildlife initiatives since 1995,                                                               
one passed and one failed.  He said the public is more than able                                                                
to take the facts, digest them, and thoroughly examine these                                                                    
important matters.                                                                                                              
MR. BENNETT agreed there could be some improvements in the                                                                      
initiative process, saying there has been legitimate criticism                                                                  
about how signatures are gathered, for example, as well as about                                                                
some of the fine-tuning of the process.  He concluded by                                                                        
cautioning that taking such a broad-based step as HJR 3 to                                                                      
essentially restrict an important part of this state's democratic                                                               
process is a big mistake.                                                                                                       
Number 385                                                                                                                      
CO-CHAIR OGAN, acknowledging Mr. Bennett's part in putting                                                                      
together the same-day airborne hunting initiative, stated his                                                                   
belief that people had thought they were voting on shooting                                                                     
wolves from airplanes, which was not the case.  He pointed out                                                                  
the wording of the initiative was even misleading.                                                                              
MR. BENNETT said that wasn't the intent, stating that there are                                                                 
some built-in protections in the process, including an                                                                          
explanation set in front of the voters that is a fair description                                                               
of what the initiative does.  He stated, "I think in that case,                                                                 
to us it was clear what that initiative did.  It was a                                                                          
contentious issue; it always has been for the state.  So                                                                        
naturally there'd be people who would construe it differently."                                                                 
In addition to built-in protections, Mr. Bennett said the people                                                                
are smart enough to read these things and understand what they                                                                  
mean, and that if there are drafting defects, so be it, it is                                                                   
part of the process that the constitutional convention members                                                                  
recognized as perhaps a trade-off for that check and balance.  He                                                               
mentioned the gravity of changing something like a basic                                                                        
constitutional provision.                                                                                                       
Number 489                                                                                                                      
REPRESENTATIVE BARNES read from Article VIII, Section 2, General                                                                
Authority, which says the legislature shall provide for the                                                                     
utilization, development and conservation of all natural                                                                        
resources.  She said it seems the management of Alaska's                                                                        
resources is beginning to take place through the initiative                                                                     
process.  She stated her belief that the legislature has the sole                                                               
authority under the constitution for management of Alaska's fish,                                                               
wildlife, and other replenishable resources, but that the                                                                       
legislature chooses to delegate some of that responsibility to                                                                  
the Board of Fisheries and the Board of Game.  Representative                                                                   
Barnes asked Mr. Bennett whether, as a former Board of Game                                                                     
member, it doesn't worry him that the authority could be                                                                        
"initiated away," for example, causing potential biological                                                                     
Number 468                                                                                                                      
MR. BENNETT responded to Representative Barnes that he                                                                          
understands her point of view, but that the legislature delegates                                                               
to the Board of Game, which adopts regulations that the                                                                         
legislature can repeal.  An initiative can be passed, but it can                                                                
be amended by the legislature, and it can be repealed by the                                                                    
legislature after two years.  These are protections built into                                                                  
that provision.  Mr. Bennett said he just doesn't see the                                                                       
initiative provision as being destructive to [Article] VIII,                                                                    
which clearly enumerates that power, because the initiative                                                                     
article also gives a separate ability of the people to make a                                                                   
change; that can exist for a short period of time or be amended                                                                 
by the legislature.  Ultimately, the legislature still retains                                                                  
the authority to affect anything passed by initiative, or any                                                                   
regulation passed by the Board of Game.                                                                                         
Number 489                                                                                                                      
REPRESENTATIVE BARNES replied that prior to the A.L.I.V.E. court                                                                
decision, the legislature was allowed to overturn a regulation by                                                               
a simple resolution.  Since then, she had never known the                                                                       
legislature to pass legislation overturning a regulation,                                                                       
although she suggested hundreds should have been overturned.                                                                    
Number 510                                                                                                                      
MR. BENNETT expressed his belief that the two initiatives under                                                                 
discussion did not involve allocation, especially the one he had                                                                
worked on, which dealt with a method, not an allocation.  He                                                                    
added that in that sense it is less like management than would be                                                               
a strict allocation of resources.                                                                                               
Number 538                                                                                                                      
JOHNNY GRAMES testified via teleconference from Anchorage, saying                                                               
he has been an environmentalist in Alaska since he was born here.                                                               
He told members that initiative, referendum and recall are safety                                                               
valves to representative democracy, as they are direct action by                                                                
the people.  He reminded members that they had been elected by a                                                                
majority of the same voters that vote on these initiatives.  Mr.                                                                
Grames indicated that when someone tries to get an appointment on                                                               
the Board of Game, this committee "trashes" that person if he or                                                                
she is an environmentalist, so that the Board of Game doesn't                                                                   
reflect all of the citizens and voters of Alaska.  He said that                                                                 
is one cause of initiatives like the one that committee members                                                                 
apparently find so offensive.  He concluded by saying he believes                                                               
HJR 3 sets a very dangerous precedent.                                                                                          
Number 566                                                                                                                      
CO-CHAIR OGAN asked if anyone else wished to testify, then                                                                      
requested that committee members bone up on the "revision versus                                                                
amendment" issue, noting that he would make material available to                                                               
any members who had not yet received it.  He stated the belief                                                                  
that if HJR 3 passes, it will be challenged, and he advised                                                                     
members of his intention of moving the resolution from committee                                                                
eventually, after thoughtful consideration.  [HJR 3 was held                                                                    

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