Legislature(1997 - 1998)
02/26/1998 08:08 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 377 - FILLING LEGISLATIVE VACANCIES Number 1185 CHAIR JAMES announced the committee would hear HB 377, "An Act relating to filling a vacancy in the office of United States senator or in an office in the state legislature," sponsored by Representative Hodgins. REPRESENTATIVE HODGINS read the following statement into the record: "Basically in the past, vacancies which occurred between normal election cycles, the political party representing the predecessor made 'recommendations' for appointment to that seat and the Governor usually made the appointments from that list of recommendations. "House Bill 377 states that the Governor shall make the appointment from a list of at least three qualified nominees submitted by the state organization that represents the political party of the predecessor. "House Bill 377 ensures that in the event a vacancy occurs in the United States Senate or in the state legislature, the citizens of Alaska who elected the predecessor to office, will continue to have their political philosophy represented by someone of their choosing." Number 1243 REPRESENTATIVE ELTON stated, "This would prohibit, for example, what happened when Governor Hickel appointed Ted Stevens to the U.S. Senate in the late 1960s." REPRESENTATIVE HODGINS indicated that is correct. Number 1278 REPRESENTATIVE BERKOWITZ said the legislation would allow the state organization to submit nominees. He asked, "Do we give the state organizations any official recognition anywhere in the law?" REPRESENTATIVE HODGINS said he believes there is a definition of the political organizations. He noted he doesn't know if it is in this law or not. Number 1330 JAMES BALDWIN, Assistant Attorney General, Civil Division, Department of Law, came forward to respond. [Note: Due to a recording malfunction, some of Mr. Baldwin's response could not be heard on the tape.] Mr. Baldwin said he believes that this is very similar to the approach that was taken for a vacancy that occurred through the primary and the general. He said, "I think it's attempted to make this -- that scheme - that appointment scheme applicable to vacancies that occur after the general as well. That's the way I read it. It would also do away with the requirement to elect a senatorial vacancy if there is more than two years remaining on the term. I didn't pick that up from the bill directly, but I think that's the effect of it -- that requires no appointment at all." Number 1431 REPRESENTATIVE VEZEY said he is curious what Representative Hodgins is trying to accomplish. He stated, "And I too have vivid memories of when Senator Bennett died and have visions of when Senator Fahrenkamp died in Fairbanks. It was a (indisc.) left without representation in the legislature for a period of time -- or in the Senate (indisc.) case. I'm curious as to what we're trying to accomplish here." Number 1473 REPRESENTATIVE HODGINS responded, "Basically what we're trying to accomplish is that if a person is in a certain political party and is replaced, it must be by that same political party or that same political -- they must be members of the same political party. In laymen's terms, it would not allow the Governor to appoint a Democrat if the seat was held by a Republican in that office for Senate or U.S. Senate." REPRESENTATIVE VEZEY said he was referring to Section 1 where words are being added to existing statute. Number 1525 REPRESENTATIVE HODGINS responded, "The wording that would be added there would identify that person as somebody from the same political party." He read from Section 1, "under (b) of this section, an individual," and said under "(b)" of this section, it would become the same political party. REPRESENTATIVE VEZEY questioned what the significance is of the words, "after the vacancy occurs,". REPRESENTATIVE HODGINS responded that within 30 days after the vacancy occurs, that is to shorten up the time limit. He said, "If you have felt, in the past, that the appointment has not been made in a timely manner unless people..." Number 1574 CHAIR JAMES interjected, "It does say in here - it does already without the change in the law that within 30 days -- when a vacancy occurs within 30 days, the Governor within 30 days shall appoint. Now this just says 30 days after the vacancy occurs. Is that just to make it more clear? It already says when a vacancy occurs." Number 1596 REPRESENTATIVE HODGINS pointed out that the bill was drafted by Legislative Legal and if it is confusing, he wouldn't have a problem with removing the language. REPRESENTATIVE VEZEY responded that it is confusing, but there is usually a reason for words and he fails the see the reasoning. Number 1649 MR. BALDWIN said he would like to point at what he believes is a legal issue. He stated, "This is merely a process that is in existing law for appointments that (indisc.) occur between the primary and the general. A vacancy that occurs after the general are a little bit different situation, although I think a legal problem is shared in these sections. And probably what you remember about the Don Bennett vacancy - Senator Bennett's vacancy was that for awhile there, there was a lawsuit pending in Fairbanks where there was a disagreement between the Governor and the District Committee. Under existing law, there is no role for the District Committee. It's silent as to how he appoints, but the practice has always been -- the custom has always been that the governor goes to the District Committee and solicits from them suggested persons to appoint. At times, there have been disagreements between the Governor and the committee. I mean I don't think that there has been a disagreement, that I know of, about the party that should be appointed -- whether the person is from the party or not, but there have been disagreements as to the individuals that's being put forth by the District Committees. We have got to litigation at one point and it was over the provision in the law that required confirmation by less than the full house of the legislature, which is a very odd provision. And the language that's being borrowed on here, which is between the primary and the general election vacancy situation occurred when you're talking about a vacancy -- an election that provides for the party nomination where the role of the district is probably more relevant to being involved in the appointment process. What the constitution says is that appointments to fill vacancies should be provided by law, and if nothing is provided in law, then the Governor shall appoint. So the constitution gives the legislature an expressed grant of power in this area. But since the time that the constitution was written and the time that the provision was approved, which deals with between primary situations, we've had a case in the state Alive Voluntary which dealt with how the legislature must process its business. I'm sure you've probably had Alive Voluntary (indisc.) before. What it says is that the legislature can't give in to a smaller group of itself lawmaking powers. And if this confirmation is a lawmaking type power, the argument goes you can't convey it on a caucus of the legislature. That is the argument that then Governor Cowper made in Fairbanks concerning the appointment process and the role that was attempting to be made by -- what would happen there is the Governor didn't like the name. The legislature took up the name and proceeded to confirm them or indicated intentions to and we were blocking it. As these things typically do, there was an accommodation and the Governor got the name that he wanted and the District Committee was satisfied with the compromise and the lawsuit didn't mature." Number 1901 CHAIR JAMES said she remembers that situation well. The political party was supposed to put up three names and they put one name up three times. MR. BALDWIN stated he just wanted to point out that he thinks that legal issue still exists with this language and it exists in existing law for a little bit different situation. Number 1930 REPRESENTATIVE VEZEY said he remembers that situation very differently. He explained existing law is very clear that the party will nominate and the Governor will appoint. MR. BALDWIN said the existing law is silent on that point. He said, "I think that's what this bill is attempting to do is to make it (indisc.). That's where the confusion has been, Representative Vezey. People have confused the post general vacancy situation with the vacancy that occurs between the primary and the general. The law for a vacancy that occurs between the primary and the general very clearly provides that the District Committees have a role in the appointment process. But existing law, they've been getting it confused, but the practice has been that when there is a post general vacancy in an office that can be filled by appointment, that there has been the complications, but at times there has been difficulties because there has been different philosophies involved." Number 2080 CHAIR JAMES said she didn't remember the lawsuit specifically having anything to do with the legislature's power to do this or giving themselves the power to do this. She said what she recalls is if three names are supposed to be put up, there has to be three separate names as opposed to one name three times. When the Governor refused to take the one name three times and refused to put that name forward to the legislature, then the net result was they put up another name. MR. BALDWIN said, "We also raised the other confirmation issue." CHAIR JAMES questioned what the result of that was. MR. BALDWIN responded, "Everybody walked away from it." CHAIR JAMES said that is still unchallenged and there is no closure on that. MR. BALDWIN stated that there is no closure on that issue. He said, "There could be a problem even with this plan because I've seen situations where even though you present three names, the Governor -- what happens if he doesn't like those names? What happens if he doesn't appoint?" CHAIR JAMES said she doesn't know whether the Governor has the ultimate power and she doesn't know what the constitution says on that. MR. BALDWIN said, "The framework of how you want to go about doing it I think is the policy question for this committee and the legislature. I would point out the legal problem which is I think the confirmation aspect of this which would have a minority caucus or a majority caucus having a share in the appointment power. And I think that the Alive Voluntary case of this is you can't hand that kind of power to less than a full group of the legislature." Number 2158 REPRESENTATIVE VEZEY explained that he had stepped out of the room for a moment. He asked Mr. Baldwin to comment on the law that allows a portion of the legislature to confirm an appointment. MR. BALDWIN stated, "I obtain my reasoning from the State v. Alive Voluntary case." CHAIR JAMES said, "It is a separation of powers issue where they threw out the ability of the legislature to annul a regulation by a simple resolution because there was no ability for the Governor to override -- to do that." MR. BALDWIN said, "Also involved in that case was the power of the Regulation Review Committee to vote to -- had been given some power. So what that case held, Representative Vezey, was that the legislature can't bootstrap power - can't transfer its power to less than a full body. That's how I read that case and it's not on point with this situation, but I think it provides guidance." Number 2270 REPRESENTATIVE VEZEY said he doesn't see the comparison as we're talking separation of powers. He explained he sees very clear differences in the approval process for appointment and the lawmaking process. MR. BALDWIN said, "We have another case in Alaska, Granyard v. Hammond which said that -- that dealt with the confirmation with the legislature by statute attempted deputy directors subject to confirmation, and the court issued a decision saying that only in those places where it is specifically authorized in the legislature to participate in the appointment power. Now I will give you that the constitution says that the legislature may prescribe, by law, the appointment process. The constitution says that. So that's pretty heavy weight authority there that would have to be resolved (indisc.). But the question is, 'Does this constitutional provision give the legislature, by law, the power to give itself a share in the appointment followed by confirmation?' I think that, as you slightly identified, a question of proposition and one that may be prone to litigation. And my role here I think it's to tell you that there are issues like that that are present in this bill." TAPE 98-27, SIDE A Number 0049 REPRESENTATIVE ELTON asked how strongly the sponsor of bill feels about the language. Number 0081 CHAIR JAMES called for a brief at ease. She called the meeting back to order and asked if there were any further comments. Number 0088 REPRESENTATIVE HODGINS said, "This bill would just simply fill a -- change a precedence into a law. We've always had the assumption that the Governor is going to appoint and would appoint somebody from the same political party and this would, indeed, put it into law that you would actually have to." Number 0128 REPRESENTATIVE VEZEY made a motion to move HB 377 out of committee with individual recommendations and with the attached zero fiscal notes. There being no objection, HB 377 moved out of the House State Affairs Standing Committee.
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