Legislature(1999 - 2000)
02/11/1999 10:15 AM FIN
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JOINT RESOLUTION NO. 3 Proposing an amendment to the Constitution of the State of Alaska relating to the repeal of regulations by the legislature. JOHN KIMMEL, staff to Senator Robin Taylor, read the sponsor statement into the record. SJR3 would grant the Legislature the ability to repeal regulations adopted by state departments if inconsistent with the enabling statute. The repeal would be done by a resolution and require a vote of the majority of the members of each body. Mr. Kimmel pointed out that the numerous regulations contained in the Alaska Administrative Code were not created by legislators and the only recourse the Legislature had was to repeal the enabling law itself. He said this process wasted Alaskan's time and money. In the sponsor's opinion, the repeal of burdensome regulations was vital to the progress of economical development for all of Alaska. In the sponsor's opinion, the repeal of burdensome regulations was vital to the progress of economical development for all of Alaska. Mr. Kimmel continued saying that this issue had been put before the voters and that the time had come again for voters to reduce the amount of time and money spent in Legislation. This proposed constitutional amendment would be on the ballot in the next general election. Senator Dave Donley noted Senator Al Adams's amendment handed out to the committee. He felt the amendment would go in one direction but stated that he was leaning in the other direction of public policy. He wondered why the Legislature should limit itself by requiring a finding that the adopted regulation was inconsistent with enabling statutes. "Doesn't this just foster litigation over the subject?" he asked. It seemed to him to be more direct to say that the Legislature may repeal a regulation by resolution. He explained his argument by saying that the constitutional matter in question stated that all the power of the Executive Branch to adopt regulations stems from the legislative constitutional powers. The Legislature delegated that power to them. "If we don't delegate the power, they have no power to do so." he exclaimed. He felt it seemed inconsistent to limit the Legislature's authority to repeal those regulations that were adopted under the delegated power from the Legislature. Senator Dave Donley continued saying that the current language would foster appeals to the Supreme Court about whether a resolution repealing a regulation was consistent with its enabling statute. "We all know how squirrelly our Supreme Court has become in the last year. Who could ever predict what those five people would come down with the way they've been going." he remarked. He alluded to the court's original conception of separation of powers as they had exhibited in other cases. The were the only court in the history of the United States ever to decide to modify a constitutional amendment proposition before it went on the ballot and without allowing the legislature to review those changes, he cited. He declared that the Supreme Court had proved its inability to live within the "separation of power" provision. He was reluctant to give the court another opportunity to explore new and original ways theories of constitutional analysis. Senator Robin Taylor arrived at the meeting and Senator John Torgerson updated him on the discussion. SENATOR ROBIN TAYLOR commented saying that the issue been raised previously. He told the committee that Senator Kim Elton had indicated a desire to make the provision more restrictive yet. Senator Robin Taylor felt that was going too far. To make the process work, in his opinion, a statement must be made by the Legislature showing that the regulation was not consistent. He didn't think the language needed to be any more definitive than that, but that it would help defend the decision when the Supreme Court reviewed it. Senator John Torgerson then told Senator Robin Taylor about Amend #1, which was not yet offered. Senator Dave Donley expressed a desire for the committee to discuss the issue before the bill went to the Senate floor. I think that's a reasonable position to take. He didn't find the current language unreasonable but thought it may not be necessary, and might not be the best public policy. He believed it would be good to establish a record in the committee on whether the inconsistency was with just the language of the statute or with the intent of the statute. As the current bill read, the regulation would have to be inconsistent with the statute. "You can be inconsistent with the statute but be very inconsistent with the intent of the Legislature in adopting the statute." Senator Robin Taylor agreed. He told the committee he sent the same response to Senator Kim Elton. He could easily think of situations where a regulation would be consistent with the specific language passed in the statute, but would be inconsistent with the overall intent of the Legislature. To that extent, he had been concerned with the use of the word "statute" in the language. However, this was the language that was given to him by the bill drafters. He gave another argument for keeping the current language. That was that he felt there was the added benefit for the voters to have something to "hand their hat on" as to why the Legislature should be granted the blanket authority to repeal a regulation. For no other reason that the ability to sell the constitutional amendment to the public, he felt the language should contain reference to inconsistency. If the committee wished to remove the word "statute" it would not bother the sponsor. He suggested, ".inconsistent with the language or the intent." Senator Dave Donley deemed that to be a good compromise. He advised that the Legislature is the one who would find its own intent. He believed that would solve his concerns also. Senator Al Adams spoke to his amendment saying he was only offering it as a policy call, because he felt the resolution needed to be in writing. He didn't know if the voters would approve this amendment noting that it had been rejected several times in the past. Senator John Torgerson granted that Senator Al Adams could offer the amendment, but remarked that he did not think the committee had been talking to that amendment. Actually, the discussion was away from the intent of the amendment. Senator Al Adams moved for adoption of Amendment #1. Senator Lyda Green objected. Senator Al Adams spoke to his motion, saying it was a simple policy course. He believed the resolution needed to be in writing. The remainder of the amendment dictated that the resolution must explain why the legislature found that the regulation was inconsistent with the regulation enabling statute. Senator Robin Taylor objected to the amendment. He could not conceive how the Legislature could pass a resolution that was not in writing. He also could not imagine a resolution drafted that did not include various statements within it of the inconsistency but instead was abbreviated and only said, "Be it resolved the following regulation is repealed." He argued that the bill drafters would not do that in light of the constitutional concerns that had been raised over the years about the issue of who determines the intent of the Legislature. He felt that the only people who could decide that was the Legislature seated at the time. Every word that tightened the authority would be a word available for challenge on the actions taken by the Legislature in the future. He recommended that instead of adopting the amendment, the committee insert broadening language to allow, not only the specific language, but also the general intent as suggested by Senator Dave Donley. Senator Randy Phillips voiced his opposition of the amendment. He offered that after the voters passed the constitutional amendment, similar language could be put into law or resolutions. Senator Gary Wilken asked if there was any other kind of resolution besides a written resolution in the system. Co- Chair John Torgerson replied that there was none that he was aware of. Senator Gary Wilken bestowed that it wouldn't hurt to insert the "in writing" language into the bill for the public's knowledge. Co-Chair John Torgerson called for the vote. The motion to adopt Amendment #1 failed by a vote of 3-5-1. Senator Al Adams, Senator Pete Kelly and Senator Gary Wilken voted yea. Senator Sean Parnell was absent from the meeting. Senator Dave Donley said he wished to take the sponsor's advice and expand the language to allow the Legislature find that the resolution not only violated specific wording of the statute, but also the intent of the statute. He proposed that after the word "statute", insert "or the statute's intent." He said he would like to defer to the bill drafters and come back to the committee with specific language. Senator Robin Taylor suggested the committee make their amendment conceptual. Senator John Torgerson ruled that he would work with the sponsor and bring a committee substitute back before the committee. Senator Loren Leman said that if the bill was going to be worked on and brought back, he had a question of the sponsor. Judge Burke had suggested in his review of the "arrogant encroachment of the judiciary" that legislatures consider a moment of judicial decision in some cases by a super majority. He asked how the sponsor would react to a friendly amendment that might incorporate that concept into this bill. He referred to the possibility of arrogance acted upon by some judges. Senator Robin Taylor responded that he would like to look at that. Senator Pete Kelly said he also had thought there was a problem or two with the regulation process. Three or four years ago he passed a bill, which addressed those concerns somewhat. "There will never be a perfect regulation process." he qualified. However, in his study of regulations and their problems, he came to the conclusion that they weren't as bad as many perceived. When he saw this annulment bill, he wondered, what was stopping the Legislature now from rewriting a law. If the Legislature had to go through a resolution process to annul a regulation, it would have to include the committee process also. But if the Legislature repealed a law it does not replace it with another law. Instead the matter is returned to the regulation process, which could cause trouble, he warned. An example would be the possibility of missing a construction season. He told committee members that there were businesses that need to have these regulations in place in order to operate, even if sometimes there is a bad regulation. He also warned that the members of the Legislature did not always have the expertise needed and if a construction season were missed, the Legislature would be at fault. While he would have supported this legislation a few years ago, Senator Pete Kelly said he didn't think he could support it anymore because there was nothing stopping the Legislature from repealing regulations right now. Under the current constitutional authority granted to the Legislature, the Legislature sets policy and the Administrative Branch sets regulations. Currently, an elected official, the Lt. Governor, was responsible for the passage of a regulation. Senator Pete Kelly continued saying that the problem four years ago was that when a person from the public complained about a regulation both the Legislature and the Executive Branch placed the blame on the other. The Legislature blamed the Administration saying the regulation did not follow the law. The Executive Branch placed the blame on the Legislature saying the law was passed by the Legislature and they were only trying to work within that law. However, the Legislature was now in the loop. Those regulations came to the Legislature much sooner than they used to, by way of the Regulation Review Committee. Therefore, the "red flags" go up much earlier. They can then contact the Lt. Governor and argue against adoption of the regulation. He felt there was more accountability in the process today than there used to be. He also stressed that there was nothing stopping the Legislature from changing the laws that effect the regulations that it doesn't like. He repeated the dangers accompanying a repealed regulation with nothing to replace it and thus allow business to proceed. There was a time-lag issue plus the fact that the Legislature did not have the needed expertise to immediately replace a repealed regulation. Senator Dave Donley felt Senator Pete Kelly had raised some good arguments and that it was good to talk about them here during the committee process. Senator Dave Donley then said the primary distinction between doing something by resolution and passing a new law, was that the new law could be vetoed and then require a two-thirds vote of the Legislature to override. A resolution can't be vetoed. Since the Legislature delegated authority for making regulations, it ought to be able to override that delegation by a majority vote and not be subject to a veto. He stressed that this was a fundamental Legislative Branch function rather than an Executive Branch function. Regarding the Lt. Governor's authority to override a regulation's adoption, Senator Dave Donley felt that it was still an open question. There had been attempts made by Lt. Governor's to stop the adoption by simply not signing the regulation, but the exact authority of the Lt. Governor had not been determined. In some instances, the Lt. Governor had been forced by the Department of Law to sign regulations. Therefore, he didn't think this was a clear- cut safety valve and he thought there were good reasons to have the resolution. He also thought it was important to have this discussion. Senator Randy Phillips spoke as the only person at table who had actually experienced it. He felt that a lot of Senator Pete Kelly's fears were unfounded. The prior resolutions had been used sparingly and if they managed to pass the Legislature, it was for a good reason. In his past experience, the Legislature did no go crazy with a lot of regulations to overturn many regulations. A regulation had to be really bad in order to be repealed. As he remembered there had only been two or three resolutions that passed and overturned a regulation. "The affected regulations were pretty bad." he emphasized. He referred to water quality regulations written by the Department of Environmental Conservation. Senator Randy Phillips offered another argument, saying that even if a Legislator just introduced a resolution, it would still quickly get the department's attention. The matter could probably be resolved before going through the entire resolution process. Senator Pete Kelly responded that Senator Randy Phillips brought up a good point in noting that there had only been two or three regulations repealed under the complete resolution process. He mentioned again that there were a lot of good regulations and there are some bad ones. But there were not as many bad ones as some people might think. The burden was with federal regulations. Passage of this bill would set up a scenario where a lot of people would expect the Legislature to take action on federal regulations that the State had no control over. He referred to people approaching him with complaints about a regulation, which were almost always federal. Senator Pete Kelly then argued that there was no mechanism to prevent the Administration from writing the same regulation again that the Legislature just overrode. There is a "separation of powers." he maintained. He did not have a problem with getting this matter out to people for a vote. But he honestly felt that if the Legislature got the power it would not be very useful; it would get the Legislature into litigation; and the Legislature would be at risk for getting into issues it knew nothing about. He felt it would do more harm than good. Senator Randy Phillips voiced an intent of the Eagle River area legislators plan to introduce a bill later this session to overturn a Department of Education regulation regarding school size. It may effect Fairbanks, he told committee members. This was a good example, he said because the Legislature would have to go through the entire bill process just to get the department's attention only to have the department recommend that the Governor veto the bill. Then the Legislature would need to obtain a two-thirds vote to override the veto, which he felt would be very difficult. A resolution to modify or overturn a regulation would only require a majority vote and the Governor could not veto it. This was just another tool to make things easier for our constituents to deal with regulations, he concluded. He then referred to the A.L.I.V.E. case in 1982. Senator Pete Kelly granted the two-thirds vote requirement versus a simple majority was good argument in favor of this resolution. Senator Dave Donley said Senator Pete Kelly raised another important point. If a repealed regulation had a seasonal or other time constraint consideration, there was an option available. The Legislature could just set the effective date to be after the season in question. Senator John Torgerson pointed out there were "emergency regulation" options also available. Senator Robin Taylor gave Senator Pete Kelly an example of a resolution introduced by the former Senator Bob Ziegler during a time when resolutions were allowed. All Senator Zeigler had to do was introduce that resolution and the department came to him to work out a solution. This was done in a matter of days saving the resolution from ever being voted on. Co-Chair John Torgerson announced the bill would be held in committee until probably the next Tuesday. PAMALA LABOLE, President of the Alaska State Chamber of Commerce testified in support of resolution. She said her organization had been before the committee many times over the past several years speaking in support of the matter. It was their belief that the intent of the framers of the state constitution was that the Legislature have the ability to deal with regulations if they did not follow the intent of the enabling law. It was only a court case that changed that, she suggested. The organization felt the Legislative Branch, because it passed the enabling law was responsible for dealing with a regulation that did not follow the intent. Should this bill pass the Legislature and come before the voters, the Alaska State Chamber of Commerce would do its best to inform the public of what the constitutional amendment would do. Past failures of similar constitutional amendments were due to misunderstandings of the ballot propositions, in her opinion.