Legislature(2021 - 2022)BUTROVICH 205

04/19/2021 01:30 PM JUDICIARY

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**Streamed live on AKL.tv**
                 SB 23-INITIATIVE SEVERABILITY                                                                              
1:47:05 PM                                                                                                                    
CHAIR  HOLLAND   reconvened  the  committee  and   announced  the                                                               
consideration  of  SENATE  BILL  NO.  23,  "An  Act  relating  to                                                               
proposing and enacting laws by initiative."                                                                                     
[This was the first hearing on SB 23.]                                                                                          
1:47:32 PM                                                                                                                    
DIRK CRAFT, Staff, Senator Josh Revak, Alaska State Legislature,                                                                
Juneau, Alaska, presented SB 23 on behalf of the sponsor,                                                                       
Senator Josh Revak. He read the sponsor statement:                                                                              
     SB 23  seeks to ensure ballot  initiative language that                                                                    
     appears before voters at the  ballot box is the same as                                                                    
     the language circulated  during the signature-gathering                                                                    
     phase and  to restore the legislature's  important role                                                                    
     in the initiative process.                                                                                                 
     Alaska's  constitution details  a very  important right                                                                    
     of  our  residents -  the  right  to enact  legislation                                                                    
     through the  voter initiative process.  The legislature                                                                    
     also has  the right to enact  legislation substantially                                                                    
     the same  as the  proposed initiative thus  removing it                                                                    
     from the ballot.                                                                                                           
     The  proposed   ballot  initiative  language   must  be                                                                    
     submitted  to  the  State of  Alaska  for  review.  The                                                                    
     Alaska Department of Law  reviews the proposed language                                                                    
     then provides the  Lieutenant Governor a recommendation                                                                    
     whether to certify or deny the language.                                                                                   
     The Lieutenant  Governor's certification is a  key step                                                                    
     in  the  initiative  process. Only  once  certification                                                                    
     happens  will the  state  print  petition booklets  for                                                                    
     gathering   voter  signatures.   The  petitioner   then                                                                    
     circulates  the  booklets   to  gather  signatures  and                                                                    
     submits  those  to  the state  for  verification.  Once                                                                    
     signatures are verified, an  initiative can be prepared                                                                    
     for the ballot.                                                                                                            
     Per our  constitution, some  issues are  off-limits for                                                                    
     ballot initiatives  and initiatives can only  cover one                                                                    
     subject. But  while a cursory legal  review of language                                                                    
     occurs before the  Lieutenant Governor's certification,                                                                    
     it  has sometimes  been the  case  that further  review                                                                    
     finds constitutional  concerns with  proposed language.                                                                    
     In those  cases, a  party can file  a lawsuit  to force                                                                    
     the  issue through  the court  system. This  can happen                                                                    
     simultaneous to the circulation of signature booklets.                                                                     
     Under current law, if a  court determines that language                                                                    
     in  a proposed  initiative  is unconstitutional  and/or                                                                    
     severed, an amended version of  the language can appear                                                                    
     before  voters.   This  results  in  voters   seeing  a                                                                    
     different initiative  than the one they  supported with                                                                    
     their   signature.    Furthermore,   if    the   courts                                                                    
     revise/sever the language  after the legislative review                                                                    
     process, they deny the legislature  its right to review                                                                    
     the initiative as revised. The  net effect of a court's                                                                    
     severance  is that  an initiative  can move  forward to                                                                    
     the  voters that  is substantially  different than  the                                                                    
     initial version reviewed by the legislature.                                                                               
     SB 23  would rectify  this situation. Under  this bill,                                                                    
     if  a  court determines  that  language  in a  proposed                                                                    
     initiative   is   unconstitutional  or   severed,   the                                                                    
     Lieutenant Governor  must reject the  entire initiative                                                                    
     petition and prohibit it from  appearing on the ballot.                                                                    
     Voters should  be assured that  language on  the ballot                                                                    
     has  not  changed from  the  language  in the  petition                                                                    
     booklets supported  with voter signatures  and further,                                                                    
     restores the  legislature's right  to review  and enact                                                                    
     substantially   similar   legislation    to   stop   an                                                                    
     initiative from moving forward.                                                                                            
     I respectfully request your support for SB 23.                                                                             
1:50:05 PM                                                                                                                    
CHAIR HOLLAND asked  if there were any differences  between SB 23                                                               
and  Senate Bill  80, proposed  by the  late Senator  Chris Birch                                                               
during the last legislature.                                                                                                    
MR. CRAFT  responded that there  were no changes. He  pointed out                                                               
that  a Legislative  Legal Services  opinion  raised some  issues                                                               
during a  Senate State  Affair Committee  hearing. He  offered to                                                               
provide a copy to members.                                                                                                      
1:50:42 PM                                                                                                                    
SENATOR HUGHES asked him to describe the legal issues.                                                                          
MR.  CRAFT said  first, the  legislature  imposes a  rule on  the                                                               
initiative process that  it does not impose on  itself, which may                                                               
be in violation  of Art. XI, Sec.  7. He said that  was the chief                                                               
concern in the legal opinion.  Further, Art. XI, Sec. 4, provides                                                               
the legislature with the right  to review and enact substantially                                                               
similar legislation.  The framers of the  Alaska Constitution did                                                               
not create a direct initiative  in the constitution. Instead, the                                                               
framers  envisioned  the  legislature would  provide  the  policy                                                               
review  prior to  an initiative  being placed  on the  ballot. He                                                               
related his  understanding that  a number  of cases  were severed                                                               
after the legislature held its  review, thereby going around that                                                               
review process.  The legislature may have  supported the language                                                               
at the  time of  the review.  If the  language changed  from when                                                               
voters  signed a  petition,  the  voters may  be  voting for  the                                                               
initial  initiative language  rather than  the final  version, he                                                               
1:52:51 PM                                                                                                                    
SENATOR KIEHL commented that the Art.  XII, Sec. 11 question is a                                                               
problem for the  bill. However, he is sympathetic  to the concern                                                               
that voters sign  one thing only to find out  that something else                                                               
is placed  on the ballot.  It is  a material difference  from how                                                               
the legislature enacts bills. Bills  must pass both bodies in the                                                               
identical language.  He asked whether the  sponsor had considered                                                               
requiring an earlier review of  the language before an initiative                                                               
sponsor invested substantial funds into  the process. He asked if                                                               
the legal review could happen at an earlier point.                                                                              
1:54:11 PM                                                                                                                    
MR. CRAFT  responded that  the sponsor  has researched  how other                                                               
states conduct  their initiatives.  He acknowledged that  part of                                                               
the issue is that there could  be a knowing deception, a bait and                                                               
switch. He  highlighted questions the previous  committee raised,                                                               
including  how many  cases  were severed,  which  was about  five                                                               
initiatives since  the 1980s. Only  two cases were  severed after                                                               
the legal review process. In  1988, in the McAlpine v. University                                                               
of Alaska  case, after  two years of  budget cuts  to consolidate                                                               
administrative  costs, an  initiative  was proposed  to create  a                                                               
community  college   system.  The  initiative  included   a  real                                                               
property  transfer from  the  University of  Alaska  (UA) to  the                                                               
community  colleges.   People  signed   the  petitions   and  the                                                               
legislature reviewed  them but  the courts  later ruled  that the                                                               
transfer constituted an  appropriation. One reason for  SB 23 was                                                               
to address the issue raised  in McAlpine v. University of Alaska,                                                               
where  people  signed the  petitions  to  allow the  transfer  of                                                               
property,  not just  to  create a  community  college system.  He                                                               
suggested that there  might be another way to  address the issue,                                                               
perhaps by modeling  how other states have  addressed this issue.                                                               
The  sponsor   has  contacted  the  National   Council  of  State                                                               
Legislatures (NCSL) for feedback.                                                                                               
1:56:37 PM                                                                                                                    
SENATOR SHOWER stated one issue  is that the timing of challenges                                                               
is unpredictable.  For example, challenges could  arise after the                                                               
legislature's review of an initiative.                                                                                          
MR.  CRAFT answered  yes, if  the  challenge is  filed after  the                                                               
legislative  review, it  would  bypass  an important  legislative                                                               
1:57:44 PM                                                                                                                    
SENATOR MYERS referred to the  Alaska Constitution, Art. 12, Sec.                                                               
11, which read:                                                                                                                 
     Unless  clearly  inapplicable,  the  law-making  powers                                                                    
     assigned  to the  legislature may  be exercised  by the                                                                    
     people   through  the   initiative,   subject  to   the                                                                    
     limitations of Article XI.                                                                                                 
SENATOR  MYERS offered  his view  that  the analogy  in terms  of                                                               
severability  is  whether  an  initiative  may  be  amended.  The                                                               
legislature uses the amendment process.  However, by allowing the                                                               
courts  to effectively  sever  a portion  of  the initiative,  it                                                               
effectively allows  the courts to amend  the initiative. However,                                                               
there  is  not  any  provision   for  the  people  to  amend  the                                                               
initiative at that  point since they can only vote  to approve or                                                               
reject  the  initiatives. He  referred  to  the language  "unless                                                               
clearly  inapplicable". An  amendment  process  would be  clearly                                                               
inapplicable in a  ballot initiative. If the  court system severs                                                               
the  language, it  effectively exercises  the  law making  powers                                                               
assigned to the legislature. He offered  his view that SB 23 does                                                               
not provide for an effective  constitutional challenge unless the                                                               
legal memo will identify something.                                                                                             
1:59:32 PM                                                                                                                    
CHAIR  HOLLAND  said he  would  like  the  committee to  have  an                                                               
opportunity to review the legal opinion.                                                                                        
[SB 23 was held in committee.]                                                                                                  

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