Legislature(2021 - 2022)BUTROVICH 205

04/13/2021 03:30 PM STATE AFFAIRS

Note: the audio and video recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.

Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved SB 23 Out of Committee
-- Public Testimony --
Moved SB 77 Out of Committee
-- Public Testimony --
Heard & Held
-- Invited & Public Testimony --
Heard & Held
-- Invited & Public Testimony --
                 SB  23-INITIATIVE SEVERABILITY                                                                             
3:37:00 PM                                                                                                                    
CHAIR SHOWER  announced the consideration  of SENATE BILL  NO. 23                                                               
"An Act relating to proposing and enacting laws by initiative."                                                                 
SENATOR  JOSH REVAK,  Alaska State  Legislature, Juneau,  Alaska,                                                               
sponsor  of SB  23, summarized  that SB  23 seeks  to restore  an                                                               
important check in the initiative  process. When individuals sign                                                               
an initiative  petition, the  courts should  not be  empowered to                                                               
decide how  much the language on  the ballot can differ  from the                                                               
language in the petition. He said  the legislature has a right to                                                               
enact   substantially   similar   legislation  to   replace   the                                                               
initiative,  but it  is denied  that  right if  the court  severs                                                               
provisions of the initiative and it goes directly on the ballot.                                                                
SENATOR COSTELLO asked how this has been a problem in the past.                                                                 
DIRK CRAFT, Staff, Senator Josh  Revak, Alaska State Legislature,                                                               
Juneau,  Alaska,  explained that  the  Alaska  Supreme Court  has                                                               
ruled on a  number of occasions that provisions  of an initiative                                                               
are severable.  The most recent  was the 2018  salmon initiative.                                                               
The court  struck a  number of  provisions after  the legislative                                                               
review process and the measure went on the ballot.                                                                              
CHAIR SHOWER asked if he had other examples.                                                                                    
MR. CRAFT  cited McAlpine v.  University of Alaska in  1988 where                                                               
the court severed a spending provision in the initiative.                                                                       
SENATOR  COSTELLO  asked if  the  court  has  weighed in  on  the                                                               
constitutionality of severability, which statute prohibits.                                                                     
MR.  CRAFT answered  that he  did not  recall the  court speaking                                                               
directly on severability.                                                                                                       
SENATOR  COSTELLO  asked how  many  states  have severability  in                                                               
their initiative process.                                                                                                       
MR. CRAFT  answered that NCSL  research indicated that  more than                                                               
20  states have  severability in  their initiative  language, and                                                               
the process is either direct  or indirect. Alaska has an indirect                                                               
initiative  process meaning  that the  legislature has  the final                                                               
review before the measure goes to  the voters. States that have a                                                               
direct  initiative  process   more  typically  have  severability                                                               
language, so  it is  unusual to have  both the  legislative check                                                               
and severability.  This can potentially override  the legislative                                                               
SENATOR  KAWASAKI asked  if all  the  members had  the memo  from                                                               
Legislative Legal Services on this topic.                                                                                       
CHAIR  SHOWER  confirmed that  his  office  distributed the  memo                                                               
dated 3/21/21 to all the members.                                                                                               
SENATOR KAWASAKI said  he would like the committee  to talk about                                                               
that opinion that questions the constitutionality of the bill.                                                                  
CHAIR SHOWER asked the sponsor to comment.                                                                                      
3:42:57 PM                                                                                                                    
SENATOR REVAK said  SB 23 seeks to resolve the  situation where a                                                               
group  could  put  forward  an initiative  knowing  that  it  has                                                               
unconstitutional provisions  and that the court  will sever those                                                               
provisions before it  goes to the voters. The voters  may not see                                                               
the same  language on the  ballot that  was on the  petition they                                                               
signed. This bypasses the  legislature's check and constitutional                                                               
authority  under  Title  11, Section  4  to  enact  substantially                                                               
similar legislation before an initiative goes to the ballot.                                                                    
CHAIR SHOWER  asked whether  he or his  staff had  discussed this                                                               
with Legislative  Legal Services  and whether their  response was                                                               
similar to Senator Kawasaki's characterization.                                                                                 
MR. CRAFT replied Legislative Legal  Services was waiting for the                                                               
sponsor  to submit  the  question in  writing  before drafting  a                                                               
formal response. He agreed to  distribute the response to members                                                               
as soon as possible.                                                                                                            
CHAIR  SHOWER recalled  that  a  similar issue  came  up with  an                                                               
initiative in the last year or two.                                                                                             
MR. CRAFT said he did not recall that.                                                                                          
SENATOR KAWASAKI  said he had  no problem  moving the bill  on to                                                               
the Judiciary Committee to review the constitutional issues.                                                                    
CHAIR SHOWER said he looked forward  to having the debate in that                                                               
3:46:47 PM                                                                                                                    
SENATOR COSTELLO  said this legislation  is important  because it                                                               
will result  in more time and  care going into the  language that                                                               
goes on the  initiative petition. That language  does matter, and                                                               
it should  not be different  when it  appears on the  ballot. She                                                               
said  she was  familiar with  the memo,  but the  courts are  the                                                               
final  arbiter as  to whether  something  is constitutional.  She                                                               
thanked the sponsor for introducing the legislation.                                                                            
CHAIR SHOWER described it as  disingenuous to change the language                                                               
in  an initiative  after people  sign. He  reiterated that  it is                                                               
appropriate to look at the  constitutional issue in the Judiciary                                                               
3:49:16 PM                                                                                                                    
CHAIR SHOWER opened public testimony on SB 23.                                                                                  
3:49:52 PM                                                                                                                    
KATI   CAPOZZI,  President/CEO,   Alaska  Chamber   of  Commerce,                                                               
Anchorage, Alaska,  stated that the  chamber believes that  SB 23                                                               
will maintain  the integrity of  the signature  gathering process                                                               
for ballot  measures. Last year  the chamber membership  voted to                                                               
support the following policy position statement:                                                                                
     Initiative petitions  often ask  voters to  make simple                                                                    
     yes  or  no  decisions  about  complex  issues  without                                                                    
     subjecting  them to  detailed  expert  analysis or  the                                                                    
     opportunity  to participate  through a  public process.                                                                    
     Changes in  the initiative process should  produce more                                                                    
     transparency   and   better    public   policy   in   a                                                                    
     comprehensive  and balanced  manner equally  benefiting                                                                    
     both voters  and the legislative  process. As  such, we                                                                    
     support  SB  23  and  the  bill  sponsor's  efforts  to                                                                    
     correct a  deficiency that has  been overlooked  in the                                                                    
     ballot measure  process.   We also  believe that  SB 23                                                                    
     will result in fewer  protracted legal battles once the                                                                    
     ballot  measure proponents  understand that  should any                                                                    
     section  of their  initiative  not pass  constitutional                                                                    
     muster,  they  would  be  required  to  revert  to  the                                                                    
     signature gathering  stage of  the process.   This will                                                                    
     result in more carefully  crafted ballot measures being                                                                    
     proposed from the outset, which  means a smoother, more                                                                    
     predictable  and transparent  process  for all  parties                                                                    
     whether they  support or oppose  the ballot  measure in                                                                    
SENATOR KAWASAKI  asked whether the  chamber would be  willing to                                                               
put forward a constitutional  amendment dealing specifically with                                                               
Article 11  Section 7. [Ms.  Capozzi was  not online to  hear the                                                               
question and  Senator Kawasaki  said he would  call her  and pose                                                               
the question.]                                                                                                                  
3:53:41 PM                                                                                                                    
BETHANY  MARCUM, Alaska  Policy Forum,  Anchorage, Alaska  stated                                                               
that  Alaska is  fortunate to  have a  constitutionally enshrined                                                               
ballot initiative  process. This is  a valuable right but  for it                                                               
to  have  value  for  future   generations  of  Alaskans,  it  is                                                               
imperative to  ensure the integrity  of the process.  Past Alaska                                                               
Supreme  Court decisions  created  a loophole,  which allows  the                                                               
court to sever  parts of the initiative  language. While removing                                                               
an unconstitutional  provision may  be well intended,  the result                                                               
is that  the words  that appear  on the  ballot may  be different                                                               
from the  language that voters  signed on the petition.  She said                                                               
this  is  an  injustice  to  Alaskan voters  and  it  strips  the                                                               
legislature of  its right as  a counterbalance in  the initiative                                                               
process. She said it would be  good policy for the legislature to                                                               
address this by passing SB 23.                                                                                                  
3:55:44 PM                                                                                                                    
MARLEANNA HALL, Executive  Director, Resource Development Council                                                               
for Alaska  (RDC), Willow, Alaska,  stated that RTC  has reviewed                                                               
SB 23  and requests the committee  move it along. It  will ensure                                                               
that  the language  on an  initiative petition  remains unchanged                                                               
when it  appears on  the ballot.  Initiative proponents  would no                                                               
longer be able  to rely on Alaska's courts to  do their legal and                                                               
editing services; if the court  were to sever provisions from the                                                               
initiative petition  that voters signed,  it would not  be passed                                                               
along to the ballot box.                                                                                                        
3:57:25 PM                                                                                                                    
CHAIR SHOWER  closed public  testimony on SB  23 and  solicited a                                                               
3:57:45 PM                                                                                                                    
SENATOR REINBOLD moved  to report SB 23,  work order 32-LS0209\A,                                                               
from  committee  with  individual  recommendations  and  attached                                                               
fiscal note(s).  [The original  version of  the bill  passed from                                                               
committee. It was not amended.]                                                                                                 
CHAIR SHOWER found  no objection and SB 23 was  reported from the                                                               
Senate State Affairs Standing Committee.                                                                                        

Document Name Date/Time Subjects
SB 23 Support Written Public Testimony.pdf SSTA 4/13/2021 3:30:00 PM
SB 23