SCR 1-ART. II, SEC. 16, CONST: VETO RECON  1:31:07 PM CHAIR CLAMAN announced the consideration of SENATE CONCURRENT RESOLUTION NO. 1 Relating to the procedure that the Thirty- Fourth Alaska State Legislature will use to reconsider bills and items vetoed by the governor. CHAIR CLAMAN said that this is the first hearing of SCR 1 in the Senate Judiciary Standing Committee. He asked the invited testifier to put herself on the record and begin her remarks. 1:31:36 PM SUSAN ORLANSKY, representing self, Anchorage, Alaska, testified by invitation on SCR 1, as follows: I am a lawyer in private practice in Anchorage, and I have done that for more than 40 years now. Over the decades, I've had the privilege to have been asked to do legal research on an enormous variety of issues. Approximately a year ago, I was contacted by Senator Claman and by Doug Gardner, who is, or at least was then, the Senate majority counsel. They asked me if I had time to look into issues related to Article II, Section 16 of the Alaska State Constitution, which is the section that governs the legislature's "Action Upon Veto" to use the formal title of the section. I had no preconceptions when I began my research about how this section is designed to work, since I had absolutely no previous occasion to do any research related to this section of the Constitution. It turned out to be a surprisingly straightforward research project. Often, legal research ends in ambiguous and unclear territory where there is no one clearly correct interpretation of a statute or constitutional provision, and advocates reasonably could argue for different interpretations. That's what most litigation is all about. This project was not like that. Here I found really only one sensible answer. Here, there is complete consistency between: • The explicit language of the State Constitution; • The minutes from the Constitutional Convention that explain the intent of the framers who drafted the language; and also • The rules and practices adopted by the very first legislature, which included some people who had been delegates to the Constitutional Convention, who had, therefore, a unique understanding of what the framers intended the legislature to do in response to a gubernatorial veto. 1:33:36 PM MS. ORLANSKY continued her testimony on SCR 1: I had no part in drafting SCR 1, but I have read it, and I think it very accurately sets out the history and the meaning of Article II, Section 16. If you'll indulge me, I've got maybe about five minutes' worth of comments to explain my research and my analysis briefly. So, I'd like to make a couple of points about the constitutional language and the subsequent practice by the very first legislature. I hope to use somewhat less legalistic-sounding language that's in the proposed resolution to make this as clear as possible. The starting point for any exercise in interpreting the Constitution has to be the language of the Constitution. The first sentence of Article II, Section 16, says very explicitly: Upon receipt of a veto message during a regular session of the legislature, the legislature shall meet immediately in joint session and reconsider passage of the vetoed bill or item. Later sentences in this section, which were added later, address what happens if the legislature is not in session when a bill is vetoed. They provide that if the legislature reconvenes in either a regular or special session after receiving the veto, the legislature shall reconsider the vetoed bill in joint session, not later than the fifth day after reconvening. The bottom line is that the constitutional language is crystal clear that the legislature is required to meet in joint session after receiving a veto. The Constitution uses the word "shall," which is a word of requirement. There's no discretion to decide not to meet in joint session after receiving a veto. 1:35:25 PM MS. ORLANSKY continued her testimony on SCR 1: Second, the Constitution and the minutes make very clear that the joint session is to be held promptly. The Constitution literally says "immediately" if the legislature is in session when the veto is delivered, and "within five days of reconvening" if the legislature is not in session when the veto is delivered. So, if there's anything at all unclear in the constitutional language, it's only exactly what does "immediately" mean. I'm not going to say there's a definitive answer to that, but I think the constitutional language and the Constitutional Convention minutes suggest some pretty clear guidelines. At one extreme, the framers of the Constitution made clear they actually didn't intend to require both houses to drop everything and move literally immediately into joint session. They discussed that, and they rejected that notion. But equally clearly, the framers' statements made clear that they meant that the legislature must hold the joint session promptly, without undue delay. The first legislature, which dealt with the first-ever gubernatorial vetoes, met in joint session on the same day the vetoes were delivered. It voted on one of the vetoes and postponed consideration of the other for about two more days. An outside limit for what can be considered prompt enough to meet the spirit of the constitutional requirement of immediately is strongly suggested by the five-day limit that the Constitution provides for meeting in joint session, if the legislature has adjourned at the time the veto is issued, and the legislature will next meet when it reconvenes for a further regular or special session. In other words, the Constitution explains that five days after returning to session is enough time when the legislators will have to come back and reorganize themselves for getting back to work. So, if five days are enough in that situation, it's fair to assume that, when the veto is delivered while the legislature is already in session, waiting more than five days would not satisfy the constitutional requirement to meet in joint session immediately. 1:37:37 PM MS. ORLANSKY continued her testimony on SCR 1: The last point I want to make is that all of this is also completely consistent with the legislature's current Uniform Rule 45; this is the rule titled "Vetoed Bills." It provides that after the governor returns a vetoed bill, with his objections, to the house of origin when the legislature is in session, the house shall note the veto message in its journal, and the other house is promptly requested to meet in joint session to reconsider passage of the vetoed bill or item. So again, using that word "promptly" invited. If the legislature is not in session when the veto is delivered, your Rule 45 tracks the Constitution and states that the bill must be considered in joint session within five days of that legislature's reconvening in a regular or special session. 1:38:28 PM MS. ORLANSKY continued her testimony on SCR 1: I've been told that in the recent past, the legislature sometimes turned to Uniform Rule 51 rather than Rule 45 for procedures on responding to a veto. I think that's pretty clearly a mistake. Rule 51 is a general rule on joint sessions. It provides for how a joint session may be called by agreement of the presiding officer of both houses or by a vote of the majority of one house. It's very well accepted in law that a more specific rule controls over a general rule, which is why it's a mistake to be guided by the general rule on calling a joint session instead of the very specific rule, Rule 45, which was written precisely to define the legislature's required procedure in response to a vetoed bill. In sum, my research supports the conclusion that the proposed resolution accurately describes the history behind the language in Article II, Section 16, and accurately describes the way the first legislature interpreted the language. So, if anyone's got any questions, I'm happy to try to answer them. 1:39:38 PM SENATOR MYERS agreed with the testifier's research and conclusions but said one section might create some confusion, referring to the "whereas" clause on page 2, line 17. He expressed his understanding that this clause could eventually become precedential. He said he has no issue with the portion referencing Senate Bill 140 and March 18. However, he noted that line 19 references the legislature meeting in joint session on January 18, 2024, to reconsider vetoed items from House Bill 39, the operating budget. He stated that although the legislature did meet, it voted on only one budget veto, ignored approximately two dozen other line-item vetoes, and also ignored two bills that had been vetoed the previous fall. He said this portion of the clause does not align with the testifier's presentation. He expressed his concern that the "whereas" does not really set a clear precedent and, in effect, highlights how the legislature ignored the Constitution. He asked the testifier to express her opinion on that. 1:41:34 PM MS. ORLANSKY replied that she is not an expert on the dates or on what occurred during the last joint session and noted that she did not participate in writing SCR 1. She said her understanding, based on his comments, is that what is written in the clause is accurate but may not be complete or provide the full context. She stated that she would leave it to the committee and the drafters to determine whether the point the senator wished to make would be more effectively conveyed if the clause presented a more complete picture of what happened. 1:42:13 PM SENATOR STEVENS said that recognizing the difficulty of calling the legislature back into session when members are spread across the world, he wanted to ensure he understood the timeline correctly. He asked whether the five days to react begins only after the legislature has reconvened, rather than five days after members begin being called in. He sought confirmation that the five days the legislature has to consider an issue applies after it has reconvened. MS. ORLANSKY affirmed that is correct. SENATOR STEVENS said, as a follow-up to remarks regarding reconsideration of a governor's vetoes during a joint session, the legislature has often picked and chosen which matters to address, and he believes the legislature has the right to do that. 1:43:09 PM CHAIR CLAMAN continued the subject, offering the following supposition. The legislature is in joint session with ten vetoed items before it. There is interest in overriding two items but not the remaining eightperhaps because there are not enough votes to override those eight. He asked whether the legislature would be failing to meet its constitutional obligations if it votes on items one and two and, when items three through ten come up, a member moves to adjourn the joint session and the majority votes to adjourn. He asked whether the constitutional requirement is satisfied by meeting in joint session even if the legislature does not specifically vote on each vetoed item. MS. ORLANSKY replied that she had not researched that question specifically, but her initial reaction is that the legislature would not have satisfied the constitutional requirement. She believes it requires the legislature to apply its response to every vetoed message, based on her reading of the Constitution and minutes. She stated that if, for example, there were six vetoed items, she would find it difficult to interpret the Constitution as allowing the legislature to reconvene, vote on one item, ignore the remaining five, and still have met its obligation. She stated that she reads the Constitution as creating a duty for the legislature to be heard in response to a veto. She noted that if members counted votes in advance and knew an override would fail, the legislature could take very quick votes without extended discussion, as nothing requires long debate or efforts to revise legislation to satisfy the governor or the majority. She said her reading of the Constitution is that the legislature, meeting in joint session, is required to vote on the veto within five days. 1:45:07 PM SENATOR MYERS highlighted the testifier's comments and said he tends to agree with her. He said the constitutional language requires the legislature to meet immediately in joint session and then immediately reconsider passage of the vetoed bill or item. He said that indicates the legislature cannot simply meet and adjourn; it must vote on each item. He contended, per the Constitution, the legislature shall immediately meet in joint session and "reconsider passage of the vetoed bill or item," which he interprets as requiring an up-or-down vote on everything. He said this could be done either as a packagesuch as one vote on ten budget vetoesor by voting on each item individually, but the legislature cannot vote on only two or three and leave the remainder. He referred to comments from Delegate Taylor in the minutes of the Constitutional Convention and quoted in a memo provided in the bill packet, emphasizing that vetoed items must return to the house of origin and not be allowed to die through inaction. The delegate objected to the withdrawal of the motion that added the word "immediately." He said that while the delegates were not directly addressing the situation of convening and immediately adjourning without taking a vote, their statements support the principle that a vote is needed. He stated that this applies to whether one house fails to request a joint session, or whether the legislature convenes in joint session and adjourns without voting. He said the delegates tried to get the legislature to avoid taking those actions. He expressed his belief, as did the invited testifier, that the legislature would require a vote if it were following the Constitution. 1:47:42 PM SENATOR KIEHL pointed out a language variation in art. II, sec. 16 of the Constitution. He said it seems when it comes to appropriation items, the language addressing vetoes returned while the legislature is in session states that the legislature: shall meet immediately in joint session and reconsider passage of the vetoed bill or item. SENATOR KIEHL said, however, when the same section discusses bills vetoed after adjournment of the first or second session, it refers only to reconsidering the bill and does not refer to items. He asked how that distinction should be understood when discussing an amount of money for a purpose, which he believes the Alaska Supreme Court has defined as an item. 1:48:54 PM MS. ORLANSKY replied that she did not have an answer to that question. She said her research over the past year focused on the obligations of the legislature when it is already in session. She noted that the first sentence of the section was part of the original Constitution, while the sentences addressing what occurs when the legislature is not in session were added later, which she thinks was in 1975. She stated that she is not the expert and did not review all that material, so she does not have a good answer. She said she understood his point and that it may be valid, but she was not prepared to offer an opinion on how the Constitution should be read because she has not conducted the necessary background research. 1:49:46 PM SENATOR KIEHL said that, generally, both good-government structure and the minutes of the Constitutional Convention point to the balance of powers requiring the legislature to convene and vote. He recalled previous events and said he believed there was a time when the legislature passed a partially funded budget to the governor, who then vetoed every line by half or two- thirds. He noted that such a circumstance would have required a very long joint session, even without discussion. 1:50:39 PM SENATOR MYERS said that the committee received several legal memos as part of the documentation for SCR 1 and that there appears to be some confusion or conflict among them regarding how the Supreme Court might become involved. He said one memo suggested that if the legislature ignored a vetoed item, it could theoretically face a lawsuit, while another memo, referencing the Meekins case, noted that the Supreme Court generally tries to avoid telling the legislature what to do. He asked the testifier to shed more light on how to interpret those points and how the legislature can find that balance. MS. ORLANSKY replied that she would likely bypass a direct answer because she knows what she researched and what she did not research in depth. She said it is correct that there is case law pointing in both directions. She stated that the Supreme Court frequently does not want to tell the legislature how it should operate. She noted, however, there may be a difference between the Supreme Court telling the legislature whether it is following its own ruleswhich the Supreme Court may be reluctant to doand the Supreme Court determining whether the legislature is abiding by the Constitution. She said the balance of powers may require the Supreme Court to review and weigh in on a properly brought lawsuit alleging that the legislature is not following the Constitution, and that the outcome of such a case could differ from a lawsuit asserting only that the legislature is not following its own rules. 1:52:29 PM SENATOR KIEHL referred to the testifier's opening remarks and asked why it would be invalid to assume that if there are enough votes to adjourn a joint session, then there are obviously not the supermajorityor, in the case of appropriations, the higher thresholdneeded to override a veto. He asked why a vote to adjourn a joint session with several items still pending would not accomplish the same result. MS. ORLANSKY replied that her best answer returns to the distinction between specific and general provisions, noting that specific provisions ordinarily control over general ones. She said that while there is a general rule about when the legislature may adjourn a joint session, there is a very specific rule about what the legislature is required to do when calling a joint session to reconsider a vetoed bill. She stated that if she were hired to defend the position that the legislature must meet in joint session and act on a veto, she would argue to the Supreme Court that the specific provision governing the legislature's response to a veto controls over the general rules governing when the legislature may convene or adjourn a special session. 1:54:16 PM SENATOR MYERS followed up with a question on that point. He asked whether the following hypothetical scenario aligns with the spirit of what the delegates talked about in the first legislature: • The governor vetoes ten items in the operating budget. • The legislature convenes to vote on those vetoes for possible overrides. • Some vetoed items are politically sensitive for certain members. • Certain legislators want to override two or three items but do not want to vote on others because their views and those of their constituents differ, making them hesitant to cast a vote on the record. • Certain legislators feel the same way, but about opposite items. SENATOR MYERS stated that, in such a situation, the question would shift from whether there are enough votes to override any specific item to whether a vote on adjournment reflects how many legislators want to avoid taking a vote on a given budget item. He asked how that scenario interacts with the delegates' intent to prevent the legislature from sitting on an item and not taking a vote. 1:55:58 PM MS. ORLANSKY responded that she is not a legislator or a politician but understands why some politicians might feel that way. However, the Constitution places a duty on legislators to meet and reconsider the veto. She acknowledged that the role of legislators carries inherent difficulty and is not always comfortable one. She then expressed her belief that when a veto occurs, the constitutional requirement to meet and reconsider the veto prevails over a member's comfort or political choice. 1:56:57 PM SENATOR STEVENS said that, with all due respect to the testifier, who comes highly recommended and has done great work, the legislature tends to find the attorney who will give the answer it wants. CHAIR CLAMAN replied that he was not sure what the senator meant about the answers the committee received. SENATOR STEVENS stated that the interpretation flies in the face of legislative precedent and ties the legislature's hands. He said the legislature can always have a motion to adjourn and the body must address that motion immediately. He noted that the legislature must follow multiple rules. He expressed concern about where this discussion is taking the legislature. 1:58:03 PM CHAIR CLAMAN opened public testimony on SCR 1; finding none, he closed public testimony. 1:58:42 PM CHAIR CLAMAN held SCR 1 in committee.