Legislature(2011 - 2012)Anch LIO Rm 220
04/29/2011 01:30 PM House FINANCE
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| Start | |
| SB46 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
April 29, 2011
1:27 p.m.
1:27:46 PM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 1:27 p.m.
MEMBERS PRESENT
Representative Bill Stoltze, Co-Chair
Representative Bill Thomas Jr., Co-Chair
Representative Anna Fairclough, Vice-Chair
Representative Mia Costello
Representative Mike Doogan
Representative Bryce Edgmon
Representative Les Gara
Representative David Guttenberg
Representative Reggie Joule
Representative Mark Neuman
Representative Tammie Wilson
MEMBERS ABSENT
None
ALSO PRESENT
John J. Burns, Attorney General, Department of Law; Brian
Bjorkquist, Assistant Attorney General, Department of Law;
Chris Poag, Assistant Attorney General, Department of Law;
Senator Giessel; Senator Olson; Senator McGuire.
SUMMARY
SB 46 BUDGET: CAPITAL
SB 46 was not in possession of the House Finance
Committee, so no action was taken.
SENATE BILL NO. 46
"An Act making and amending appropriations, including
capital appropriations and other appropriations;
making appropriations to capitalize funds; and
providing for an effective date."
1:36:35 PM
JOHN J. BURNS, ATTORNEY GENERAL, DEPARTMENT OF LAW, stated
that the contingency language in SB 46 was
unconstitutional. He stated that it was possible that the
Senate Finance Committee could remove that specific
language. He stated that it was his responsibility to
uphold the constitution. He stressed that the principles of
government were grounded in the constitution.
1:39:41 PM
Attorney General Burns stated that the constitution
outlined the specific criteria for legislation. He pointed
out that the legislature had the power to override the
governor's veto. He pointed out sections in the capital
budget that upset the balance of powers in the Alaska
government. He stressed that the contingency language was
unconstitutional. He pointed out that there was $104
million in spending related to grouped projects. He
stressed that the contingency language restricts the
governor's constitutional rights. He stressed that the
governor is a state-wide elected official, and the
legislators are only elected based on districts, he is
allowed to veto. He also pointed out that the legislature
has the power to over ride the governor's veto.
1:43:02 PM
Attorney General Burns stated that the power and authority
to appropriate funds are assigned to the legislature. He
pointed out that a disruption of these rights is
unconstitutional. He explained that linking projects
together with contingency language would usurp the
governor's line-item veto power, and would upset the checks
and balances that constrain the two branches of government.
1:46:14 PM
Attorney General Burns stressed that the risk of litigation
would jeopardize the funding of energy projects. He pointed
out that no project could rely on money, if the state
funding was uncertain.
1:48:56 PM
Attorney General Burns stated that the confinement clause
declared that the contingency language was
unconstitutional. He referred to a ruling in the Knowles
vs. Legislative Council case.
Attorney General Burns stated that linking appropriations
was unconstitutional and felt that the capital budget's
unconstitutional language should be removed.
1:51:58 PM
Representative Gara pointed out that the legislature's
lawyers had expressed a different opinion. He stated that
he had shared a conversation that he had with Attorney
General Burns. He stated that the senate had their reasons
for including the language in the bills. He stressed that
the Senate wanted specific projects, and wondered if the
Attorney General would be available to mediate the
conflict, and try a list of projects that everyone could
agree on. Attorney General Burns explained that he would
always be of assistance. He pointed out that there was an
important process. He felt that decisions should not be
made behind closed doors, and encouraged the legislature to
make clear open conversations.
Co-Chair Stoltze stated that the term "veto-power" was
considered "inside baseball talk."
1:56:47 PM
Representative Gara pointed out that the governor does not
openly discuss what projects he will veto. He explained
that the constitution allows for the governor to encourage
the House and Senate to solve their issues. He asked that
the Attorney General work with the governor to determine
the most valuable energy projects. He pointed out that the
governor was not open about his choices, and hoped that the
governor would be in more communication with all parties.
He also pointed out that the legislature did have the power
to override the governor's veto.
1:59:34 PM
Representative Costello felt that the struggle was with the
linkage of the projects SB 46. She stressed that that was
the main issue that the House was dealing with. She pointed
out that there could be a concern in later budgets with
linkage language. She wondered if the capital budget was
creating a new law by linking energy projects together.
Attorney General Burns stated that the point of the
confinement provision was to keep the capital budget
focused on appropriations, not on legislation and creation
of new law. He stressed that that was the current concern.
2:02:55 PM
BRIAN BJORKQUIST, ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF
LAW stated that there was not one state energy plan. He
pointed out that many state agencies were working on an
energy plan, but there was not one state energy plan. He
stated that the intent language in section 4 of SB 46
referenced the statutory energy plan, and spoke to helping
communities develop an energy plan.
Representative Costello pointed out that there was a
history of language assigned to a line item. Mr. Bjorkquist
stated that the legislature can set forth intent language,
as long as the language does not restrict the governor's
constitutional right to veto a line item. He pointed out
that the governor could not veto language. He could only
veto a line item.
2:06:38 PM
Vice-chair Fairclough pointed out that she was
uncomfortable with the contingency language. She supported
energy solutions that help benefit Alaska. She explained
that the meeting was held in Anchorage because there were
too many "sound-bites thrown around of the good and bad of
the capital budget." She pointed out that there was some
contingency language that had been supported in the courts,
and requested a conversation about why this specific
language was unconstitutional. Attorney General Burns
agreed with Vice-chair Fairclough, and stressed that the
real problem was regarding the contingency language that
was tied with a particular line-item. Mr. Bjorkquist
pointed out that the Alaska Supreme Court defined an item
of appropriation to be a sum of money dedicated to a
particular purpose. The intent language was meant to be the
minimum number of words necessary to explain the
legislature's intent for a specific appropriation.
2:13:04 PM
Vice-chair Fairclough referred to a conversation about
creating a "mouse-trap" with contingency and non-
severability language. She stressed that if the legislature
came together to fund the projects. She wondered if there
was a legal challenge needed, or if the linkage would be
allowed and would withstand a constitutional challenge. Co-
Chair Stoltze agreed with Vice-chair Fairclough. Attorney
General Burns pointed out that the purpose of the "mouse
trap" was to pull away power from the governor stated that
the language had been fully reviewed, and the intent of the
tying of projects was for the purpose of depriving the
governor of his line-item veto power. He stressed that if
the Senate Finance Committee decided to keep the contended
language in the bill, the Judiciary branch would get
involved.
2:16:42 PM
Representative Edgmon referred to intent language which was
non-binding, and wondered if the legal challenge might not
be as strong, because the contingency language might be
considered intent language. He wondered if it would
undermine the clause. Mr. Bjorkquist stated that if the
intent language was attempting to create substantive law,
it would be considered unconstitutional. He continued that
there was not an energy plan in existence, so the
contingency language created an energy plan. He stressed
that it was a violation of the confinement clause.
2:20:10 PM
Representative Edgmon he pointed out that the budgets
passed during session are very critical to the state, but
specifically to rural Alaska. He stressed that the capital
budget did not need to be passed before the end of the
legislative session according to the constitution, and
asked for confirmation. Attorney General Burns affirmed
that the capital budget did not need to be passed before
the end of the session.
2:20:48 PM
Representative Doogan pointed out that Attorney General
Burns had stated that there could be a third party coming
in to invalidate the budget, if the bill was written with
the contingency language. He wondered if that had ever
occurred in the past. Attorney General Burns replied that
this would be the first time that this specific approach
was used.
2:23:36 PM
Representative Doogan wondered if assigning Village Public
Safety Officers to a specific location would violate the
governor's authority. CHRIS POAG, ASSISTANT ATTORNEY
GENERAL, COMMERCIAL/FAIR BUSINESS SECTION, CIVIL DIVISION-
JUNEAU, DEPARTMENT OF LAW was not aware of an instance
where there was a challenge to a contingency that linked
together numerous appropriation items. He explained that
there were some legal challenges where public interest
litigants challenged appropriations as a violation of the
dedication clause.
2:28:08 PM
Co-Chair Stoltze commented that his presence in the process
allowed for lengthy litigation limiting projects. He would
be surprised if there was not litigation against the
Susitna project. He felt that there were many possibilities
for people to attempt to litigate the potential for oil
exploration. Attorney General Burns agreed.
Co-Chair Stoltze and Attorney General Burns had a
conversation about how litigation against capital budget
decisions could be brought forward by anyone.
2:31:16 PM
Representative Guttenberg recalled comments about state
energy policy. He felt that there was a broad state energy
policy, and felt there was much effort regarding organizing
an energy policy. He wondered why it would not be
constitutional for the legislature to appropriate money to
a single organized energy policy within the budget. Mr.
Bjorkquist responded that the program of the state energy
plan, and stated the legislation regarding energy policy
was merely a statement of goals that the state agencies had
been striving for. He stressed that the energy policy was
not a program.
Representative Guttenberg pointed out that the policy had
been created by the legislature, and if the legislature
passed the list of projects, then the energy policy would
be state-implemented.
2:34:30 PM
Mr. Bjorkquist stated that an appropriation bill cannot
include substantive law. Representative Guttenberg asked if
SB 46 violated the law. Mr. Bjorkquist responded that the
senate's attempt is to link the projects and call them a
state energy policy.
Representative Guttenberg wondered if the opinion of
Attorney General Burns is the law.
Co-Chair Stoltze interjected that Attorney General Burns
represented the law.
2:37:27 PM
Attorney General Burns agreed that he is not a member of
the judiciary branch in the context of the present law. He
stressed that the point of view that he was presenting was
the opinion of the Department of Law.
Representative Gara stated that many different actions
might be considered unconstitutional. He mentioned that he
was the former assistant to the attorney general. He
expressed concern regarding leaving Juneau without a
capital budget, because many projects in the bill were good
projects that may save consumers money. No energy package
and no weatherization funding might leave people without
the capital budget.
Co-Chair Stoltze stated that the bicameral process means
that both legislative bodies must approve the budget.
2:43:01 PM
Attorney General Burns shared concern about the capital
budget. He understood the importance. He wanted to make
sure that the process occurred appropriately. His comments
were just an opinion of the Department of Law. Ultimately
the decisions would be made by the Judiciary Branch. The
consensus of the Department of Law is that the language is
unconstitutional.
2:44:57 PM
Representative Gara stated that the opinion of the Attorney
General is only an opinion just as that of Legislative
Legal department was only an opinion. The judiciary branch
holds the force of law.
Mr. Poag recommended the removal of section 37. Co-Chair
Stoltze is not in the condition to remove section 37,
because the House Finance Committee was not in possession
SB 46.
Vice-chair Fairclough appreciated the recommendation of
Attorney General Burns, but her position is not to say what
good policy was for the Senate. Should the bill come over
from the senate, the governor has the ability to reduce or
remove a project. She stressed that compromise was
required, and stated that she would be happy to compromise
if she had a bill in her hand.
Co-Chair Stoltze stated that the "mouse is maybe a rabid
rat."
2:52:30 PM
Representative Joule discussed the necessity of a capital
budget for the state. If it is a project in rural Alaska,
the importance is for work for Alaskans and materials
purchased locally. Those capital projects become a way to
get people through a training process. The best form of
welfare is a job, and many projects weretied to that. So
much was presented in the rural areas, and he hoped that
the issue was resolved before the loss of another season to
shift materials. He expressed the information obtained by
the legal community.
Co-Chair Stoltze stated that they will all head back early
morning. He appreciated the members coming.
2:55:58 PM
Attorney General Burns stated that he remained hopeful that
the contingency language woult be removed before moving to
the House. He understood that the Governor would evaluate
each project on the merits of the projects.
2:58:01 PM
Co-Chair Stoltze credited three senators present as SENATOR
MCGUIRE, SENATOR OLSEN, and SENATOR GEISSEL.
SB 46 was not in possession of the House Finance Committee,
so no action was taken.
ADJOURNMENT
The meeting was adjourned at 2:58 PM
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