Legislature(2021 - 2022)BUTROVICH 205
04/13/2021 03:30 PM STATE AFFAIRS
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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 check. 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 committee. 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 Committee. 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 question. 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 motion. 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.
|SB 23 Support Written Public Testimony.pdf||
SSTA 4/13/2021 3:30:00 PM