Legislature(2021 - 2022)BELTZ 105 (TSBldg)

03/01/2022 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

Audio Topic
03:32:50 PM Start
03:33:39 PM SB144
04:45:15 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
**Streamed live on AKL.tv**
*+ SB 144 DISASTER EMERGENCY PROCLAMATIONS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
            SB 144-DISASTER EMERGENCY PROCLAMATIONS                                                                         
                                                                                                                                
3:33:39 PM                                                                                                                    
CHAIR HUGHES  announced the consideration  of SENATE BILL  NO. 144                                                              
"An Act relating to disaster emergencies."                                                                                      
                                                                                                                                
3:35:18 PM                                                                                                                    
SENATOR LORA REINBOLD,  Alaska State Legislature,  Juneau, Alaska,                                                              
sponsor  of SB 144,  introduced  the bill by  reading the  sponsor                                                              
statement:                                                                                                                      
                                                                                                                                
[Original punctuation provided.]                                                                                                
                                                                                                                                
     SB  144  Disaster  Emergencies   seeks  to  restore  the                                                                   
     separation   of  powers   between   the  executive   and                                                                   
     legislative branches.  During such unprecedented  times,                                                                   
     the  separation  of  powers  is  critical  ensuring  all                                                                   
     three  are involved.  During the  COVID19 pandemic,  the                                                                   
     executive   branch   took   broad   latitude   declaring                                                                   
     disasters  consecutively for  the same reason,  usurping                                                                   
     the legislature  in the process. SB 144 seeks  to ensure                                                                   
       when another disaster occurs, if needed beyond 30                                                                        
      days, the legislature is included in the process of                                                                       
     declaring a consecutive disaster.                                                                                          
                                                                                                                                
3:39:08 PM                                                                                                                    
KELLI TOTH, Staff, Senator Lora Reinbold, Alaska State                                                                          
Legislature, Juneau, Alaska, paraphrased the following sectional                                                                
analysis for SB 144:                                                                                                            
                                                                                                                                
[Original punctuation provided.]                                                                                                
                                                                                                                                
     Section 1: AS18.15.390 is amended to amended adding a                                                                    
                 new subsection, Before the  department takes                                                                   
                 a  public   health  measure,   ensures   the                                                                   
                 legislature approves.                                                                                          
                                                                                                                                
     Section 2: AS22.10.020 amended adding a new subsection                                                                   
                 the superior court is the court  of original                                                                   
                 jurisdiction  regarding   local  and   state                                                                   
                 emergency  orders,  ensuring  expedition  of                                                                   
                 challenges   heard    within    72    hours.                                                                   
                 Inequality in  the applicability  or  impact                                                                   
                 of emergency  orders  on  analogous  groups,                                                                   
                 situations,  and  circumstances  is  grounds                                                                   
                 for the  superior  court  to  invalidate  or                                                                   
                 enjoin an emergency order on the  basis that                                                                   
                 it is  not  narrowly  tailored  to  serve  a                                                                   
                 compelling public health service.                                                                              
                                                                                                                                
     Section 3: AS 26.23.020 (c) A Proclamation of disaster                                                                   
                 emergency may  not remain  in effect  longer                                                                   
                 than  30   days  unless   extended  by   the                                                                   
                 legislature. A  proclamation  to  declare  a                                                                   
                 condition of disaster  emergency must  state                                                                   
                 whether  the  governor  proposed  to  expend                                                                   
                 state funds  to  respond.  If  the  governor                                                                   
                 issues a  subsequent  proclamation  that  is                                                                   
                 substantially similar, the legislature  must                                                                   
                 affirmatively pass  with 2/3 vote  approving                                                                   
                 adopting a  concurrent resolution  ratifying                                                                   
                 the proclamation of disaster emergency.                                                                        
                                                                                                                                
      Section 4: Adds a new section Emergency orders that                                                                     
                 bind, curtail  or  infringe  the  rights  of                                                                   
                 private parties  must  be narrowly  tailored                                                                   
                 to  serve  a  compelling  public  health  or                                                                   
                 safety purpose.  Each  emergency order  must                                                                   
                 be limited  in duration,  applicability  and                                                                   
                 scope in  order  to reduce  infringement  of                                                                   
                 individual liberty.  Emergency  orders  that                                                                   
                 infringe  on   constitutional   rights   are                                                                   
                 limited to seven days unless  legislature is                                                                   
                 in session and has  15 days to  consider and                                                                   
                 vote  to   ratify   the   order   with   2/3                                                                   
                 affirmative vote.  Or,  if  during  interim,                                                                   
                 the governor may  call the legislature  into                                                                   
                 special session  to  consider  and  vote  on                                                                   
                 emergency   order.   If   the    seven   day                                                                   
                 expiration  doesn't   apply,   the  30   day                                                                   
                 expiration  date  applies.  Each  house  may                                                                   
                 vote to  ratify or  terminate the  emergency                                                                   
                 order,    may    debate    remote     debate                                                                   
                 electronically or other means to  the extent                                                                   
                 not prohibited by  the presiding officer  of                                                                   
                 each  house.   Emergency   order  means   an                                                                   
                 emergency   order,   decree,   proclamation,                                                                   
                 regulation or other mandate.                                                                                   
                                                                                                                                
      Section 5: Adds a new paragraph to read AS 29.20.650                                                                    
                 (limitations  on   emergency   orders   that                                                                   
                 relate to the public.)                                                                                         
                                                                                                                                
     Section 6: AS 29.20 is amended adding a new section, a                                                                   
                 municipality    may     issue     nonbinding                                                                   
                 recommendations and  guidelines that do  not                                                                   
                 include  provisions   for   enforcement   or                                                                   
                 surveillance.   To   the   extent   that   a                                                                   
                 municipality  issues  emergency  orders  the                                                                   
                 orders  may   not  infringe   constitutional                                                                   
                 rights including  rights  to  travel,  work,                                                                   
                 assemble, and  speak, the  free exercise  of                                                                   
                 religion,  contract  and  property   rights,                                                                   
                 freedom  from   unreasonable  searches   and                                                                   
                 seizures,  and  the   freedom  to   purchase                                                                   
                 lawful firearms and ammunition.                                                                                
                                                                                                                                
3:42:20 PM                                                                                                                    
SENATOR D. WILSON read the text on page 2, lines 8-10:                                                                          
                                                                                                                                
     A proclamation of disaster emergency may not remain in                                                                     
       effect longer than 30 days unless extended by the                                                                        
     legislature by law.                                                                                                    
                                                                                                                                
SENATOR D.  WILSON then referred  to the text  on page 2,  line 21                                                              
that  talks about  a concurrent  resolution. He  recalled a  legal                                                              
memo that  said that  a concurrent  resolution  does not have  the                                                              
same effect as a  statute and it does not have  the effect of law.                                                              
He asked  if it  would be  a problem  if the  legislature were  to                                                              
ratify  a  proclamation  of  disaster   emergency  by  adopting  a                                                              
concurrent resolution, given the  language on page 2, lines 8-10.                                                               
                                                                                                                                
SENATOR  REINBOLD  deferred  the  question  to  Legislative  Legal                                                              
Services.                                                                                                                       
                                                                                                                                
3:43:37 PM                                                                                                                    
ALEX  FOOTE,  Legislative  Counsel,  Legislative  Legal  Services,                                                              
Legislative  Affairs  Agency, Alaska  State  Legislature,  Juneau,                                                              
Alaska,  responded   that  Senator  Wilson's   interpretation  was                                                              
correct. This would require a new bill.                                                                                         
                                                                                                                                
SENATOR D. WILSON  responded that this could be  corrected with an                                                              
amendment or committee substitute.                                                                                              
                                                                                                                                
3:44:00 PM                                                                                                                    
CHAIR HUGHES advised  that legislatures across the  50 states have                                                              
expressed  concern  about  their disaster  statutes  because  [the                                                              
COVID  19 pandemic]  was  the  first real  test  of  them over  an                                                              
extended  period. Many  legislators realized  that governors  were                                                              
given extensive  powers and  that some retooling  was in  order to                                                              
rebalance  the  powers so  the  legislature  could weigh  in.  She                                                              
expressed hope that  the provisions in SB 144 would  stand up in a                                                              
court of  law and  work for  Alaska in  the future. She  expressed                                                              
her  belief  that an  extended  public  health  crisis was  not  a                                                              
consideration  when  the  disaster   statutes  were  written.  She                                                              
emphasized that any  questions she might ask were  not intended to                                                              
berate  the bill;  she simply  wanted to  make sure  that it  will                                                              
work.                                                                                                                           
                                                                                                                                
CHAIR HUGHES  asked Mr. Foote  how Section  1 of the  bill changes                                                              
the current process  to extend an emergency  disaster proclamation                                                              
that lasts longer than 30 days.                                                                                                 
                                                                                                                                
3:46:20 PM                                                                                                                    
MR.  FOOTE  answered that  it  addresses  the possibility  that  a                                                              
governor  could seek  additional  disaster  declarations based  on                                                              
the  same disaster  condition. Section  1  explicitly states  that                                                              
the legislature must approve any extensions.                                                                                    
                                                                                                                                
CHAIR HUGHES observed  that a particular public  health measure or                                                              
requirement  was not  about a  full-on  disaster declaration.  She                                                              
offered her  understanding  that it would  include something  like                                                              
the Department of  Health and Social Services deciding  to suspend                                                              
certain  regulations for  telehealth. She  asked for  confirmation                                                              
that Section  1 was not an  indication that the  legislature would                                                              
not have  to convene to lift  a regulation on  telehealth. Rather,                                                              
a  governor could  do  that during  the 30  days  of the  disaster                                                              
declaration,  and after that  the regulation  would expire  unless                                                              
the legislature extended the declaration.                                                                                       
                                                                                                                                
3:47:38 PM                                                                                                                    
MR.  FOOTE  answered that  his  understanding  was that  it  would                                                              
expire absent express legislative action.                                                                                       
                                                                                                                                
CHAIR  HUGHES  asked if  Section  1  referred to  the  prohibition                                                              
against consecutive orders that are substantially similar.                                                                      
                                                                                                                                
MR.  FOOTE deferred  to  the sponsor  to speak  to  the intent  of                                                              
Section 1.                                                                                                                      
                                                                                                                                
SENATOR REINBOLD yielded the question to Ms. Toth.                                                                              
                                                                                                                                
3:48:28 PM                                                                                                                    
MS. TOTH  stated that  Section 1  says that  the legislature  must                                                              
give its approval  before the department takes action  on a public                                                              
health measure. To  the question about whether  Section 1 referred                                                              
to consecutive orders,  she said that is addressed  in a 1/31/2021                                                              
legal  memorandum  from  Andrew  Dunmire  with  Legislative  Legal                                                              
Services. She read the following from page 2 of the memo:                                                                       
                                                                                                                                
          Would a court find the governor's successive                                                                        
     declarations to be a violation of AS 26.23.020(c)?                                                                       
                                                                                                                                
     Yes,  a court  likely  would  find that  the  governor's                                                                   
     executive   orders   declaring  new   disasters   beyond                                                                   
     November   15,  2020,  violated   AS  26.23.020(c).   As                                                                   
     discussed  above, that  statute  gives the  legislature,                                                                   
     and  only   the  legislature,  authority  to   extend  a                                                                   
     disaster declaration.                                                                                                      
                                                                                                                                
3:49:34 PM                                                                                                                    
CHAIR HUGHES  responded that she  was seeking clarification  about                                                              
the  application   and  meaning   of  Section   1.  She   posed  a                                                              
hypothetical example  of a governor issuing an order  during a 30-                                                              
day  disaster declaration  to  deliver clean  bottled  water to  a                                                              
community  after   an  earthquake  destroyed  the   potable  water                                                              
system.  She asked  for confirmation  that  Section 1  was not  an                                                              
indication that  the legislature would  have to meet in  order for                                                              
that water to be distributed.                                                                                                   
                                                                                                                                
3:50:19 PM                                                                                                                    
SENATOR  REINBOLD   answered  that  Section  1  is   referring  to                                                              
extended  disaster declarations.  The general  intent of  the bill                                                              
is  to  prevent   the  abuse  of  executive  power   and  increase                                                              
legislative sovereignty.                                                                                                        
                                                                                                                                
CHAIR HUGHES indicated she was still a little confused.                                                                         
                                                                                                                                
3:51:39 PM                                                                                                                    
SENATOR MYERS  highlighted  that the public  health measures  that                                                              
are mentioned  in AS  18.15.390(a) do  not have a  lot to  do with                                                              
what  happened  during  the  most   recent  disaster  declaration.                                                              
Subsection  (a) addresses things  such as  evacuation of  an area,                                                              
decontamination,  and  disposal of  human  remains.  He asked  the                                                              
sponsor how  long she  thought it would  take for the  legislature                                                              
to convene and vote to authorize those sorts of things.                                                                         
                                                                                                                                
SENATOR  REINBOLD  said  her  reading is  that  the  governor  has                                                              
emergency powers  during the 30-days of the  disaster declaration,                                                              
but  Section  1  clarifies that  "unelected  bureaucrats"  in  the                                                              
department do not have emergency powers.                                                                                        
                                                                                                                                
3:53:09 PM                                                                                                                    
CHAIR HUGHES asked Mr. Foote if he drafted SB 144.                                                                              
                                                                                                                                
MR. FOOTE answered no.                                                                                                          
                                                                                                                                
CHAIR HUGHES  asked whether  the drafter  was available  to answer                                                              
questions, because  Section 1 seems  to say the same  thing that's                                                              
in current law.                                                                                                                 
                                                                                                                                
MR. FOOTE said he'd check.                                                                                                      
                                                                                                                                
SENATOR  MYERS  commented  it would  be  more  straightforward  to                                                              
repeal AS 18.50.390  entirely, if the legislature has  to give its                                                              
approval before  the governor or  department can take  any action.                                                              
If the powers  weren't delegated, the legislature  would just need                                                              
to pass a bill.                                                                                                                 
                                                                                                                                
SENATOR  REINBOLD reiterated  that  the goal  in Section  1 is  to                                                              
restrict  decision-making  to elected  officials.  Generally,  the                                                              
bill  clarifies that  a  disaster declaration  lasts  for just  30                                                              
days, and  that the  legislature must  weigh in  if there  is need                                                              
for any subsequent  disaster declarations. She added  that she was                                                              
very receptive to suggestions.                                                                                                  
                                                                                                                                
CHAIR HUGHES  pointed out that the  Disaster Act exists  in all 50                                                              
states  so  there can  be  a quick  response  in  the  event of  a                                                              
catastrophe.   She   expressed    concern   that   requiring   the                                                              
legislature  to convene for  every measure  could put  Alaskans at                                                              
risk.                                                                                                                           
                                                                                                                                
CHAIR HUGHES asked  Mr. Foote if the Alaska Disaster  Act statutes                                                              
provide  that  a  commissioner  who  issues  a  mandate  during  a                                                              
disaster is acting on the governor's behalf.                                                                                    
                                                                                                                                
MR. FOOTE  replied that  was his  understanding; the  commissioner                                                              
would  be  acting  pursuant  to the  governor's  power  under  the                                                              
Alaska Disaster Act.                                                                                                            
                                                                                                                                
CHAIR  HUGHES  observed  that  the  sponsor's  interpretation  was                                                              
different  than  Mr. Foote's  legal  opinion. The  sponsor  talked                                                              
about unelected  officials issuing mandates and Mr.  Foote's legal                                                              
opinion  was  that the  commissioner  would  be acting  under  the                                                              
authority of the  governor. She suggested the sponsor  think about                                                              
requiring  the   commissioner  to  go  before  the   governor  for                                                              
authorization  so  the  order  truly is  coming  from  an  elected                                                              
official.                                                                                                                       
                                                                                                                                
3:57:47 PM                                                                                                                    
SENATOR REINBOLD  responded that the  ultimate goal was  to ensure                                                              
that  orders   come  from  an   elected  official  and   that  the                                                              
legislature makes the  laws. She opined that a  lot of legislative                                                              
authority was  usurped in the  last two  years and she  was trying                                                              
to reestablish  the legislature's  lane.  She reiterated  that she                                                              
was very receptive to suggestions.                                                                                              
                                                                                                                                
CHAIR HUGHES  asked the  sponsor if she  would entertain  the idea                                                              
of broadening  the scope  to address all  types of disasters,  not                                                              
just  health  disasters.  For  example,  it would  likely  be  the                                                              
transportation  commissioner who would  be making decisions  after                                                              
a catastrophic earthquake.                                                                                                      
                                                                                                                                
SENATOR REINBOLD  restated that elected officials  should make the                                                              
decisions;  the 30-day period  for a  disaster declaration  should                                                              
be  maintained;  and the  legislature  should  approve  subsequent                                                              
disasters.                                                                                                                      
                                                                                                                                
CHAIR HUGHES  said more clarification  is needed because  the bill                                                              
appears  to require  the legislature  to convene  even during  the                                                              
30-day period.                                                                                                                  
                                                                                                                                
4:01:11 PM                                                                                                                    
SENATOR  MYERS pointed  out that  all commissioners  serve at  the                                                              
pleasure of the  governor, and they'd likely be fired  if they did                                                              
something the governor didn't want them to do.                                                                                  
                                                                                                                                
SENATOR REINBOLD  said that's  true, but the  point is  that power                                                              
should not  be given to "unelected  bureaucrats." That's  what the                                                              
Alaska  Supreme Court  said and  that's why she  believes  that SB
191 should be a companion to SB 144.                                                                                            
                                                                                                                                
SENATOR MYERS  asked whether  the intent of  the bill was  for the                                                              
governor to micro-manage the executive branch commissioners.                                                                    
                                                                                                                                
SENATOR  REINBOLD answered  that the  intent is  to ensure  that a                                                              
commissioner  does  not  get  the  powers  that  reside  with  the                                                              
governor.                                                                                                                       
                                                                                                                                
CHAIR HUGHES asked Ms. Meade to give her thoughts on Section 2.                                                                 
                                                                                                                                
4:03:25 PM                                                                                                                    
NANCY  MEADE, General  Counsel,  Alaska Court  System,  Anchorage,                                                              
Alaska,  stated that  Section  2  would be  fairly  unique in  the                                                              
court  statutes in  that it would  require the  court to  expedite                                                              
consideration of  challenges to the lawfulness of  these emergency                                                              
orders. The  statement on  page 1, lines  12-13 that  requires the                                                              
court  to hear these  challenges  within 72 hours  of being  filed                                                              
would be challenging  for the court to implement and  apply. It is                                                              
unclear whether  they have  to be  decided or  if the court  still                                                              
has to hold  a hearing if all  the parties have not  fully briefed                                                              
the issue.  The fact that it says  within 72 hours of  being filed                                                              
presents  scheduling challenges.  For example,  if a challenge  is                                                              
filed  on Friday afternoon,  it's  not clear  how the court  would                                                              
act on a challenge in a meaningful manner in that timeframe.                                                                    
                                                                                                                                
CHAIR HUGHES asked if she had clarifying language to suggest.                                                                   
                                                                                                                                
MS. MEADE answered  that she wasn't sure what the  goal was, other                                                              
than immediate  resolution. No  other statutes  tell the  court to                                                              
prioritize certain  cases at the  appellate level,  although there                                                              
are several rules  of appellate procedure about  expedited appeals                                                              
for  things  like   election  redistricting  or   cases  involving                                                              
children.  She said  she may  be able  to think  of language  that                                                              
says the courts  shall handle the challenge in  the normal course,                                                              
but it  would be unusual  for the statute  to direct the  court to                                                              
hear a  challenge of an  order before it  hears a children's  case                                                              
or another type of emergency case.                                                                                              
                                                                                                                                
4:06:11 PM                                                                                                                    
CHAIR HUGHES acknowledged  that child in need of  aid (CINA) cases                                                              
were high priority  and shouldn't be bumped and that  some sort of                                                              
accommodation  should  be  made  for cases  that  are  filed  just                                                              
before a  weekend. With  those exceptions in  mind, she  asked Ms.                                                              
Meade to  work on suggested  language to  ensure that  these cases                                                              
don't drag on for weeks.                                                                                                        
                                                                                                                                
4:07:01 PM                                                                                                                    
SENATOR REINBOLD  said the  72 hour limit  was a place-holder  and                                                              
she  understood  that  holidays  and weekends  might  need  to  be                                                              
excluded.  She  then  emphasized  how important  the  bill  is  to                                                              
prevent  harm   and  unconstitutional  restrictions   on  Alaskans                                                              
during any  future disaster  declarations. She  said she  would be                                                              
happy to work with  Ms. Meade to make Section 2  more workable for                                                              
the Court System.                                                                                                               
                                                                                                                                
CHAIR  HUGHES asked  Ms.  Meade to  describe  the strict  scrutiny                                                              
standard of  judicial review and  if that was appropriate  in this                                                              
context. She also  solicited any other comments on  Section 2 from                                                              
the court's perspective.                                                                                                        
                                                                                                                                
4:09:09 PM                                                                                                                    
MS. MEADE  explained that  strict scrutiny is  the test  the court                                                              
applies  when  it  looks  at  whether  a  government  action  that                                                              
discriminated   against  a   protected  class   (based  on   race,                                                              
religion,  or  national  origin) was  acceptable.  The  government                                                              
must have  a compelling  state interest  to take that  purportedly                                                              
discriminatory  action and  action  must be  narrowly tailored  to                                                              
achieve the result.                                                                                                             
                                                                                                                                
4:10:17 PM                                                                                                                    
CHAIR HUGHES said  she believes the strict scrutiny  test would be                                                              
appropriate  when the  court is  considering government  lockdowns                                                              
and orders  that churches can't meet.  She asked Ms. Meade  if she                                                              
agreed.                                                                                                                         
                                                                                                                                
4:10:30 PM                                                                                                                    
MS.  MEADE answered  that it  depends  on the  challenge, but  she                                                              
knows that  a challenge to the  lawfulness of a state  order would                                                              
cover everything that order might require.                                                                                      
                                                                                                                                
MS.  MEADE  highlighted  an additional  concern  with  Section  2,                                                              
which  was  that it  seemed  that  anybody  could file  a  lawsuit                                                              
challenging the  lawfulness of a  state emergency order,  not just                                                              
the legislature. She  said it's a concern that there  would be the                                                              
potential  for say  50 lawsuits  to be  filed in  in 50  different                                                              
courts the  day after a declaration,  and all of those  would need                                                              
to be heard within 72 hours.                                                                                                    
                                                                                                                                
CHAIR HUGHES asked the sponsor if she would like to respond.                                                                    
                                                                                                                                
4:12:53 PM                                                                                                                    
SENATOR  REINBOLD responded  that anybody  can file  a lawsuit  at                                                              
any time,  and she believes  it would be  highly unlikely  that 50                                                              
lawsuits would be filed immediately.                                                                                            
                                                                                                                                
CHAIR  HUGHES asked  Ms.  Meade  if same  subject  cases could  be                                                              
combined  and heard  as one,  similar  to what  happened with  the                                                              
numerous filings related to redistricting.                                                                                      
                                                                                                                                
MS. MEADE  answered that can  happen sometimes. She  recalled that                                                              
in the  redistricting case all the  parties agreed, they  were all                                                              
represented  by  attorneys,  and   the  filings  were  all  in  an                                                              
Anchorage  court. The  arguments differed  a bit,  but they  had a                                                              
common thread. That  may not be the same in a  statewide emergency                                                              
declaration. Hypothetically,  somebody in Sitka could  sue about a                                                              
vaccine  problem, somebody  in  Palmer could  sue  about a  church                                                              
problem, and somebody  in Barrow could sue about  the inability to                                                              
subsistence hunt.  She said  it would not  be possible  to combine                                                              
such  cases from  different judicial  districts.  Further, it  was                                                              
also  possible  that   some  of  the  parties   would  be  without                                                              
representation,  which would be  much more time-consuming  for the                                                              
court.                                                                                                                          
                                                                                                                                
4:16:03 PM                                                                                                                    
CHAIR  HUGHES  stated  that  Alaskans   have  the  right  to  file                                                              
challenges and  the committee will  be interested in  hearing from                                                              
Ms. Meade after  she has had time to consider how  to make Section                                                              
2 workable.                                                                                                                     
                                                                                                                                
4:16:23 PM                                                                                                                    
SENATOR D. WILSON  asked whether something similar  to the 72-hour                                                              
rule for how to engage that's in Title 47 might work.                                                                           
                                                                                                                                
4:16:44 PM                                                                                                                    
MS.  MEADE  clarified that  he  was  referring to  an  involuntary                                                              
mental  commitment under  Title  47 and  the  requirement for  the                                                              
court to have an  initial hearing within 72 hours.  She said those                                                              
generally  are   handled  by  magistrates  who  work   nights  and                                                              
weekends to handle  emergency cases and she'd need  to think about                                                              
whether a case that,  per Section 2, is supposed  to be handled in                                                              
superior court could  be delegated to a magistrate  and handled on                                                              
an emergency  basis. She highlighted  that one difference  is that                                                              
emergency  mental  commitments   typically  involve  a  number  of                                                              
professionals  at the hearings  and the  hearings under  Section 2                                                              
probably  would not  involve parties  that do  this sort of  thing                                                              
daily.                                                                                                                          
                                                                                                                                
SENATOR  REINBOLD  commented on  the  profound impact  the  health                                                              
mandates  had on  people's  lives  and said  she  would welcome  a                                                              
massive  number  of  lawsuits if  similar  mandates  were  imposed                                                              
during any future disaster declaration.                                                                                         
                                                                                                                                
4:20:02 PM                                                                                                                    
CHAIR  HUGHES  turned   to  Section  3  relating   to  consecutive                                                              
disaster  declarations.  She asked  Mr.  Foote whether  he  agreed                                                              
with the  sponsor that it  was illegal  for the governor  to issue                                                              
consecutive proclamations.                                                                                                      
                                                                                                                                
MR. FOOTE answered that he did not agree.                                                                                       
                                                                                                                                
CHAIR HUGHES asked him to elaborate.                                                                                            
                                                                                                                                
MR.   FOOTE  offered   his  understanding   that  the   governor's                                                              
declarations followed current laws.                                                                                             
                                                                                                                                
CHAIR HUGHES  asked if the  proclamations were legal  because they                                                              
related to different COVID strains                                                                                              
                                                                                                                                
MR.  FOOTE answered  that it  is the  opinion of  his office  that                                                              
those emergency declarations were lawful under AS 26.23.020.                                                                    
                                                                                                                                
CHAIR  HUGHES expressed  surprise  because she  recalled seeing  a                                                              
legal opinion that said they were not lawful.                                                                                   
                                                                                                                                
4:21:43 PM                                                                                                                    
SENATOR D.  WILSON asked if that  opinion was before or  after the                                                              
legislature  codified   those  reauthorizations  by   passing  the                                                              
Disaster Declaration statute.                                                                                                   
                                                                                                                                
MR. FOOTE answered that he didn't know.                                                                                         
                                                                                                                                
4:22:01 PM                                                                                                                    
CHAIR HUGHES  referred to  a question  and answer  in a  memo from                                                              
Legal Services dated January 30, 2021. It read:                                                                                 
                                                                                                                                
          Would a court find the governor's successive                                                                        
     declarations to be a violation of AS 26.23.020(c)?                                                                       
                                                                                                                                
     Yes,  a court  likely  would  find that  the  governor's                                                                   
     executive   orders   declaring  new   disasters   beyond                                                                   
     November   15,  2020,  violated   AS  26.23.020(c).   As                                                                   
     discussed  above, that  statute  gives the  legislature,                                                                   
     and  only   the  legislature,  authority  to   extend  a                                                                   
     disaster declaration.                                                                                                      
                                                                                                                                
She asked Mr.  Foote to forward any additional  written opinion to                                                              
her office and she would distribute it to the members.                                                                          
                                                                                                                                
SENATOR REINBOLD added  that the legal memo was  written by Andrew                                                              
Dunmire. She read the answer in full.                                                                                           
                                                                                                                                
4:23:11 PM                                                                                                                    
SENATOR  MYERS  agreed  with  the   chair  and  sponsor  that  the                                                              
Disaster Declarations  were illegal under the current  statute. He                                                              
added that  if they were  in fact illegal,  that should  have been                                                              
addressed either  through a vote  of the legislature  disapproving                                                              
the  subsequent  declarations  or  with  a  lawsuit,  but  neither                                                              
happened. He opined  that Section 3 doesn't help  because it would                                                              
also require a vote of the legislature or a court challenge.                                                                    
                                                                                                                                
4:24:00 PM                                                                                                                    
SENATOR  D. WILSON  commented that  the effective  date for  SB 56                                                              
was  retroactive  so  the  authorizations   were  legal  once  the                                                              
legislature passed that bill.                                                                                                   
                                                                                                                                
CHAIR HUGHES  said she  had some question  about that  because the                                                              
declarations were  illegal before the  bill passed. She  asked Mr.                                                              
Foote  if there  was  a statutory  definition  for  "substantially                                                              
similar."                                                                                                                       
                                                                                                                                
MR. FOOTE answered not to his knowledge.                                                                                        
                                                                                                                                
CHAIR HUGHES asked if the term was used elsewhere in statute.                                                                   
                                                                                                                                
MR.  FOOTE   answered  that   it  is   legal  language,   but  his                                                              
understanding was it is not used in this context.                                                                               
                                                                                                                                
CHAIR  HUGHES said  people argue  both ways about  whether  or not                                                              
the various  strains of  COVID-19 are  substantially similar,  and                                                              
she believes that will need to be sorted out.                                                                                   
                                                                                                                                
CHAIR HUGHES noted  the possibility of a disaster  overlapping two                                                              
governors.  She  asked Mr.  Foote  if  the  bill referred  to  one                                                              
individual  governor  and  if the  incoming  governor  could  also                                                              
issue   a  declaration,   so   there   could  be   two   different                                                              
declarations  for  the  same emergency  disaster.  She  cited  the                                                              
COVID-19 health disaster as an example.                                                                                         
                                                                                                                                
MR.  FOOTE replied  he  couldn't answer  that  without doing  some                                                              
reading.                                                                                                                        
                                                                                                                                
CHAIR  HUGHES opined  that if  one governor  can't issue  multiple                                                              
substantially  similar emergency  proclamations, she didn't  think                                                              
a  new  governor  should  have  the  ability  to  issue  a  repeat                                                              
proclamation without  legislative approval. She asked  the sponsor                                                              
if that was her intent.                                                                                                         
                                                                                                                                
4:26:53 PM                                                                                                                    
SENATOR REINBOLD answered  yes. She said Section 3  is intended to                                                              
prevent the  abuse of  power; she is  not a fan  of ex  post facto                                                              
law; and current  law says that a disaster may be  declared for 30                                                              
days.                                                                                                                           
                                                                                                                                
CHAIR  HUGHES  said  that  the problem  is  that  the  capital  is                                                              
separated from so  much of the state that it is  difficult for the                                                              
legislature  to  convene.  She   articulated  her  wish  that  the                                                              
legislature  have   the  ability   to  vote  electronically.   She                                                              
acknowledged  that it couldn't  be written  into the bill  because                                                              
the  Uniform Rules  would  have  to be  suspended.  She asked  the                                                              
sponsor if she or  her staff had looked at what  other states have                                                              
done when  the legislature  had to  reauthorize something  when it                                                              
wasn't in session.  Specifically, did their uniform  rules have to                                                              
be suspended or was it done statutorily.                                                                                        
                                                                                                                                
4:29:12 PM                                                                                                                    
MS. TOTH  answered that she would  do some research and  follow up                                                              
with the committee.                                                                                                             
                                                                                                                                
CHAIR HUGHES  opined that there probably  should be a rule  in the                                                              
Uniform Rules pertaining  to disasters. She reminded  members that                                                              
the  Senate  voted  to suspend  the  rules  during  the  emergency                                                              
disaster, but the House did not.                                                                                                
                                                                                                                                
SENATOR REINBOLD  stressed  the importance  of having the  ability                                                              
to  vote  electronically   and  reiterated  her   wish  that  more                                                              
lawsuits had  been filed challenging  the recent  emergency health                                                              
declarations. She  also offered her  views on the  aspirations and                                                              
motives of lawyers  in the state. She said she was  trying to make                                                              
Alaska  the freest  state in  the  nation to  further an  economic                                                              
boom.                                                                                                                           
                                                                                                                                
4:33:48 PM                                                                                                                    
CHAIR  HUGHES  said this  bill  will  have  long term  effects  on                                                              
future  governors  and legislatures,  and  it will  impact  lives.                                                              
It's important  to get it right  and that means the bill  will not                                                              
be rushed.                                                                                                                      
                                                                                                                                
CHAIR HUGHES referred to page 3, line 10 that says:                                                                             
                                                                                                                                
     (1) An emergency order expires in seven days unless                                                                        
                                                                                                                                
She noted  that this  new section was  talking about  an emergency                                                              
order that  binds, curtails,  or infringes  the rights  of private                                                              
parties. She asked  Mr. Foote how this differs  from the emergency                                                              
orders that last for 30 days.                                                                                                   
                                                                                                                                
4:35:36 PM                                                                                                                    
Mr. Foote advised  that the governor's power to  declare emergency                                                              
mandates   comes   the   legislature,   so  it   is   within   the                                                              
legislature's purview  to narrow the  scope of that  power through                                                              
legislation  such as  SB 144.  It  would be  up to  the courts  to                                                              
determine  whether  the  government  interest  was  sufficient  to                                                              
infringe on individual rights.                                                                                                  
                                                                                                                                
4:36:12 PM                                                                                                                    
CHAIR  HUGHES asked  for examples  of measures  that would  have a                                                              
30-day limit and orders that would expire in seven-days.                                                                        
                                                                                                                                
MR. FOOTE said he would respond to the request in writing.                                                                      
                                                                                                                                
CHAIR HUGHES asked  the sponsor if she could give  examples of the                                                              
orders  that would  fall  under the  30-day  declaration and  what                                                              
would fall under the seven-day orders.                                                                                          
                                                                                                                                
4:38:02 PM                                                                                                                    
SENATOR REINBOLD  paraphrased all  but the  first sentence  in the                                                              
new  Sec 26.23.023(c)(1),  Limitations  on  emergency orders  that                                                              
regulate the public, in Section 4:                                                                                              
                                                                                                                                
     ...  Emergency orders  that bind,  curtail, or  infringe                                                                   
     the  rights   of  private   parties  must  be   narrowly                                                                   
     tailored to  serve a compelling public health  or safety                                                                   
     purpose.  Each  emergency   order  must  be  limited  in                                                                   
     duration,  applicability, and scope  in order to  reduce                                                                   
     any  infringement   of  individual  liberty.   Only  the                                                                   
     governor  may issue  an emergency  order that  infringes                                                                   
     constitutional  rights, including  the right to  travel,                                                                   
     work,  assemble,   and  speak,  the  free   exercise  of                                                                   
     religion,  contract and  property  rights, freedom  from                                                                   
     unreasonable searches  and seizures, and the  freedom to                                                                   
     purchase   lawful   firearms   and   ammunition   in   a                                                                   
     nontrivial  manner. Emergency  orders  that infringe  on                                                                   
     constitutional rights are further limited as follows:                                                                      
      (1) An emergency order expires in seven days unless                                                                       
                                                                                                                                
SENATOR   REINBOLD  acknowledged   that  the   language  in   this                                                              
subsection  needed  to  be  cleaned up  but  stressed  that  these                                                              
infringements  on  constitutional   rights  technically  are  only                                                              
allowed during  Marshall Law. She  emphasized that  the limitation                                                              
on  attending church  has  impacted  people's right  to  assemble,                                                              
businesses  were shut  down, people  were told  who was  essential                                                              
and who was not,  and people lost their livelihoods.  She said she                                                              
imposed  a seven-day  limit  on these  types  of emergency  orders                                                              
because they had such dramatic and life altering consequences.                                                                  
                                                                                                                                
SENATOR REINBOLD  stated that SB 144 is vitally  important because                                                              
it  empowers the  legislative  branch,  gets the  courts  involved                                                              
quickly, and keeps the executive branch in check.                                                                               
                                                                                                                                
4:40:28 PM                                                                                                                    
SENATOR HUGHES  asked the sponsor  to provide  a list at  the next                                                              
hearing of  the various  orders or  requirements that  were issued                                                              
during the  past two  years and categorize  them according  to the                                                              
30-day and seven-day  duration. She commented on  the challenge of                                                              
assembling the  legislature in Juneau  on short notice.  She asked                                                              
the members  to comb  through the  bill before  the next  meeting,                                                              
because emergency  declarations need to  work for the  state, it's                                                              
not a  partisan issue. The Disaster  statutes need to  be reworked                                                              
because  they were  written to  apply  to short-term  emergencies,                                                              
not over an extended term.                                                                                                      
                                                                                                                                
4:42:53 PM                                                                                                                    
SENATOR REINBOLD  stated that  she was happy  to provide  the list                                                              
of the  18 mandates  and health  alerts as  examples of  how large                                                              
and  broad  they  were.  She also  highlighted  that  on  page  3,                                                              
subsection (d)  in Section  4 states that  each house may  vote to                                                              
ratify  or terminate  an emergency  order by  meeting remotely  as                                                              
established  by  or in  the  absence  of  the uniform  rules.  She                                                              
acknowledged  that  the  uniform  rules  needed  to  be  addressed                                                              
separately   in   statute,   but   SB   144   does   address   the                                                              
applicability.  She concluded  that it is  the legislature's  duty                                                              
to protect and defend individual liberties and prevent an out-                                                                  
of-control executive branch.                                                                                                    
                                                                                                                                
CHAIR HUGHES held SB 144 in committee.                                                                                          

Document Name Date/Time Subjects
SB 144 Sponsor Statement 1.29.22.pdf SCRA 3/1/2022 3:30:00 PM
SB 144
SB0144A.PDF SCRA 3/1/2022 3:30:00 PM
SB 144
SB 144 Sectional Analysis 1.29.22.pdf SCRA 3/1/2022 3:30:00 PM
SB 144
SB 144 Research - Legal Memos Recieved as of 3.1.2022.pdf SCRA 3/1/2022 3:30:00 PM
SB 144
SB 144 Testimony - Recieved as of 2.28.2022.pdf SCRA 3/1/2022 3:30:00 PM
SB 144