Legislature(2021 - 2022)BUTROVICH 205
04/19/2021 01:30 PM JUDICIARY
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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 said. 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 check. 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.]