Legislature(1999 - 2000)

02/11/1999 10:15 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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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.                                                                                        

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