03/08/1996 09:15 AM Senate FIN

                                                                               
       SENATE JOINT RESOLUTION NO. 32                                          
                                                                               
                                                                               
       Proposing  amendments to the  Constitution of the State                 
  of   Alaska relating to the constitutional defense council.                  
                                                                               
  Senator Robin Taylor testified on behalf of SJR 32.  He said                 
  that  the  reason the  bill  was  before the  committee  was                 
  because it would require a  vote of the people.  The  fiscal                 
  note attached is because of the  extra paragraph or two that                 
  would be needed  to place it on  the ballot.  The bill  is a                 
  simple   concept   but   a   significant   change   in   our                 
  constitutional make up.   The constitutional defense council                 
  created by this  legislation would  have the option,  should                 
  any governor in the future, fail to defend the  constitution                 
  of  the  State of  Alaska or  fail  to prosecute  actions to                 
  defend the sovereignty and constitution  of this State.  The                 
  council could initiate  such action and would  have standing                 
  before the Courts.   The  committee is well  aware that  the                 
  Legislature  has  in  the past  attempted  to  both initiate                 
  action   or continue  with actions  previously filed by  the                 
  State of Alaska and  upon dismissal by the Governor  when we                 
  attempted to intervene  we were  told that we  did not  have                 
  standing  sufficient  to  be  before   the  Court  and  were                 
  dismissed  on those  grounds.   One  recent  example is  the                 
  "Babbitt"  case.   Because of  the dismissal  of that  case,                 
  federal agencies, both interior and  agriculture, are in the                 
  process of developing regulations  under the subsistence law                 
  of Section 8 in ANILCA which law would, if those regulations                 
  are carried out and enforced, the entire fishing industry of                 
  the  State of  Alaska this  summer will  be regulated  under                 
  subsistence  laws.    That  is  the  direct  result  of  the                 
  dismissal of that suit.   Our forefathers never contemplated                 
  electing a Governor into office who would fail to defend the                 
  constitution  of  the State  of  Alaska,  and in  so  doing,                 
  forfeit the rights  of the people  of Alaska and the  rights                 
  under our constitution.  By creating this council there will                 
  be an independent body  made up of members appointed  by the                 
  Senate President, the  Speaker of the House, by the Governor                 
  and from  the public  at large  who will  make an  objective                 
  determination  as to whether  or not litigation  needs to be                 
  pursued and will have the authority and right to pursue that                 
  litigation in defense of our constitution.  It should not be                 
  seen as a threat  to any administration because it  would be                 
  assumed that the administration, an executive branch of this                 
  State,   would  be  carrying   forward  those  defenses  and                 
  prosecutions that were necessary to defend our constitution.                 
  It  should be only seen  as supplementary to, and supportive                 
  of that administration.   However, should any administration                 
  in  the future fail  to defend  the constitution  they would                 
  have the right to intervene.  Their funding would be through                 
  the legislative branch and that is the basis upon which they                 
  would receive their authority.                                               
                                                                               
  Senator Rieger said the primary concern has been  where only                 
  the executive branch has  been able to bring actions  at the                 
                                                                               
                                                                               
  federal level.  What is added by adding state constitutional                 
  law?  Senator  Taylor said this  would limit the council  to                 
  bringing   those    actions   that   would    affect   State                 
  constitutional  law  as  opposed  to  merely going  off  and                 
  litigating any question involving federal constitutional law                 
  that would  be of  interest to  them.   They are  allowed to                 
  litigate in the State courts, the  Federal courts and before                 
  administrative agencies.  There was a recent dismissal of an                 
  appeal  before an administrative  agency that  two extensive                 
  hearings were  held on  and we still  have no idea  what the                 
  future  ramifications  of  that decision  may  be.   Senator                 
  Rieger   and  Senator   Taylor   discussed  a   hypothetical                 
  settlement question  and what  one  would be  looking at  if                 
  there are State  or Federal  constitutional issues  involved                 
  that  are  being  compromised by  the  settlement.   Senator                 
  Taylor said a most recent and controversial example would be                 
  Governor Hickel's  settlement of the Exxon  Valdez situation                 
  and  the  manner  in  which  the funds  became  appropriated                 
  without passing through the legislative process.  The dollar                 
  amount would  not have  been subject  to the  review of  the                 
  council.   It would  have been wise  at the  time to  have a                 
  group  like  this  available  to  say only  the  Legislature                 
  appropriates  money,  not  the  executive  branch through  a                 
  settlement.                                                                  
                                                                               
  Senator Phillips and Senator Taylor  further discussed if it                 
  was necessary to put  in how many people  make a quorum  and                 
  what number  does it take  to have  a vote.   Senator Taylor                 
  said the drafters advised that  this was covered by Robert's                 
  Rules of Order, just as all panels and groups are.   Senator                 
  Phillips felt this was vague.   Senator Taylor said he would                 
  provide a legal opinion  incorporated in the record, on  the                 
  floor, in consideration of the amendment, stating the excess                 
  verbage was not necessary.                                                   
                                                                               
  Senator Phillips MOVED SJR 32 and without objection the bill                 
  was  REPORTED  OUT   with  individual  recommendations   and                 
  accompanying  fiscal note  of $2.2  from the  Office of  the                 
  Governor.