04/19/2021 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB15 | |
| SB23 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 15 | TELECONFERENCED | |
| + | SB 23 | TELECONFERENCED | |
| += | SB 122 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 19, 2021
1:32 p.m.
MEMBERS PRESENT
Senator Roger Holland, Chair
Senator Mike Shower, Vice Chair
Senator Shelley Hughes
Senator Robert Myers
Senator Jesse Kiehl
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 15
"An Act relating to the Open Meetings Act; and establishing a
civil penalty for violations of the open meeting requirements by
members of governmental bodies."
- MOVED CSSB 15(JUD) OUT OF COMMITTEE
SENATE BILL NO. 23
"An Act relating to proposing and enacting laws by initiative."
- HEARD & HELD
SENATE BILL NO. 122
"An Act relating to the definition of 'victim.'"
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 15
SHORT TITLE: OPEN MEETINGS ACT; PENALTY
SPONSOR(s): SENATOR(s) COSTELLO
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) CRA, JUD
02/25/21 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
02/25/21 (S) Heard & Held
02/25/21 (S) MINUTE(CRA)
03/04/21 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
03/04/21 (S) Heard & Held
03/04/21 (S) MINUTE(CRA)
03/09/21 (S) CRA AT 3:30 PM BELTZ 105 (TSBldg)
03/09/21 (S) Moved CSSB 15(CRA) Out of Committee
03/09/21 (S) MINUTE(CRA)
03/10/21 (S) CRA RPT CS 1DP 1DNP 2NR NEW TITLE
03/10/21 (S) DP: HUGHES
03/10/21 (S) DNP: GRAY-JACKSON
03/10/21 (S) NR: MYERS, WILSON
03/17/21 (S) JUD AT 1:30 PM BUTROVICH 205
03/17/21 (S) Heard & Held
03/17/21 (S) MINUTE(JUD)
03/22/21 (S) JUD AT 1:30 PM BUTROVICH 205
03/22/21 (S) Heard & Held
03/22/21 (S) MINUTE(JUD)
03/31/21 (S) JUD AT 1:30 PM BUTROVICH 205
03/31/21 (S) Heard & Held
03/31/21 (S) MINUTE(JUD)
04/12/21 (S) JUD AT 1:30 PM BUTROVICH 205
04/12/21 (S) Heard & Held
04/12/21 (S) MINUTE(JUD)
04/19/21 (S) JUD AT 1:30 PM BUTROVICH 205
BILL: SB 23
SHORT TITLE: INITIATIVE SEVERABILITY
SPONSOR(s): SENATOR(s) REVAK
01/22/21 (S) PREFILE RELEASED 1/8/21
01/22/21 (S) READ THE FIRST TIME - REFERRALS
01/22/21 (S) STA, JUD
03/09/21 (S) STA AT 3:30 PM BUTROVICH 205
03/09/21 (S) Heard & Held
03/09/21 (S) MINUTE(STA)
04/13/21 (S) STA AT 3:30 PM BUTROVICH 205
04/13/21 (S) Moved SB 23 Out of Committee
04/13/21 (S) MINUTE(STA)
04/14/21 (S) STA RPT 1DP 1DNP 3NR
04/14/21 (S) NR: SHOWER, REINBOLD, HOLLAND
04/14/21 (S) DP: COSTELLO
04/14/21 (S) DNP: KAWASAKI
04/19/21 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
MELODIE WILTERDINK, Staff
Senator Mia Costello
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions on behalf of the sponsor
of SB 15, Senator Mia Costello.
FRANK MCQUEARY, President
Alaskans for Open Meetings
Anchorage, Alaska
POSITION STATEMENT: Raised concerns about SB 15.
DIRK CRAFT, Staff
Senator Josh Revak
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 23 on behalf of the sponsor,
Senator Josh Revak.
ACTION NARRATIVE
1:32:46 PM
CHAIR ROGER HOLLAND called the Senate Judiciary Standing
Committee meeting to order at 1:32 p.m. Present at the call to
order were Senators Kiehl, Myers, Shower, Hughes, and Chair
Holland.
SB 15-OPEN MEETINGS ACT; PENALTY
1:33:13 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 15,
"An Act relating to the Open Meetings Act; and establishing a
civil penalty for violations of the open meeting requirements by
members of governmental bodies."
[CSSB 15(CRA) was before the committee. This was the fifth
hearing and public testimony was opened and closed on 3/31/21.]
1:33:34 PM
MELODIE WILTERDINK, Staff, Senator Mia Costello, Alaska State
Legislature, Juneau, Alaska, on behalf of the sponsor, stated
that at the last hearing, the committee adopted amendments to
limit SB 15 to elected officials and to create a three-tier
penalty provision, she said. If an elected official violates the
Open Meetings Act, the official will receive a warning for the
first violation, a civil penalty up to $1,000 for the next
violation and be subject to a class B misdemeanor for the third
violation, punishable for up to 90 days in jail and subject to a
fine of up to $2,000.
1:34:23 PM
CHAIR HOLLAND opened public testimony on SB 15.
1:34:42 PM
FRANK MCQUEARY, President, Alaskans for Open Meetings,
Anchorage, Alaska, stated that the three-tier penalty provision
does not consider the infraction's severity and may allow people
to game the system. He referred to subsection (f), which states
that illegal actions may be voidable. He paraphrased that if
someone thinks an unlawful act is taking place at a meeting from
which the public was excluded, those individuals must file a
lawsuit within six months. He viewed this as an onerous process
for individuals. Subsection (f) lists nine reasons why a judge
should overlook the infraction and let the illegal act stand,
which is inappropriate, he said.
MR. MCQUEARY explained that the penalties would depend on the
number of infractions. However, some violations might be
accidental, but others are not. He said he was unsure that a
$1,000 fine would be sufficient to deter people from violating
the Open Meetings Act. He suggested the committee consider
changing "voidable" to "void" to act as a barrier to bad
behavior and to eliminate all of the instructions to the court.
1:38:09 PM
CHAIR HOLLAND, after first determining no one wished to testify,
closed public testimony on SB 15.
1:38:24 PM
At ease
1:39:16 PM
CHAIR HOLLAND reconvened the meeting.
1:39:28 PM
SENATOR HUGHES recalled receiving his e-mail. She offered to
work to address Mr. McQueary's concerns in the next committee of
referral.
1:40:09 PM
CHAIR HOLLAND stated his preference to move the bill.
1:40:39 PM
SENATOR KIEHL said the bill has a further referral to the
finance committee because of the fiscal notes. Although he has
concerns, he will not object to moving the bill. He offered his
view that SB 15 does not provide a consistent and rational
public policy. For example, the planning commission could
restrict people's ability to sell their property, which may be
voidable, but the party would not incur a penalty. However, a
school board member giving direction to a superintendent on an
ongoing program outside of a public meeting could incur jail
time. Another issue is that the legislature will impose
penalties on public officials that it does not impose on its
members. Finally, he expressed concern that local taxpayers in
smaller communities will be burdened by costs to defend a city
council member and school board members who act in their
official capacity. He recalled a city council member faced a
$37.50 fine from the Alaska Public Offices Commission (APOC) but
the costs to defend the person cost the city $15,000 in taxpayer
dollars.
1:43:28 PM
SENATOR HUGHES reminded listeners that applying the Open
Meetings Act to the legislature would require a separate bill.
She stated her view that most people who want to serve also wish
to adhere to the laws. She offered her belief that the penalty
provision will make people work a little harder to ensure that
they uphold the law. She envisioned that getting to the third
penalty tier would likely be rare. She said she looked forward
to discussing subsection (f) with Mr. McQuery, which is an
existing statute and not a provision in the bill.
1:44:54 PM
SENATOR SHOWER moved to report SB 15, work order 32-LS-0176\G as
amended from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 15(JUD)
was reported from the Senate Judiciary Standing Committee.
1:45:19 PM
At ease
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
[Original punctuation provided]:
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 Governors 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 many 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 might be voting for the initial
initiative language rather than the final version.
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
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 wondered
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 the previous committee's questions,
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. The challenge will bypass an important
legislative check if the challenge is filed after the
legislative review.
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, allowing the
courts to effectively sever a portion of the initiative
effectively allows the courts to amend the initiative. However,
there is no provision for the people to amend the initiative
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 an
effective constitutional challenge unless the legal memo
identifies 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.]
2:00:16 PM
At ease
2:00:51 PM
CHAIR HOLLAND reconvened the meeting. [Due to technical
difficulties, the announcement was not recorded].
2:01:22 PM
There being no further business to come before the committee,
Chair Holland adjourned the Senate Judiciary Standing Committee
meeting at 2:01 p.m.
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