HOUSE BILL NO. 4002 "An Act authorizing an advisory vote on employment benefits for same-sex partners of public employees; and providing for an effective date." REPRESENTATIVE NORMAN ROKEBERG, SPONSOR, stated that the legislation was brought forward to bring public debate on the issue of same sex benefits. He pointed out that the purpose of the bill was to reassert the constitutional authority of the legislature as the voice of the people. He felt that the Judiciary had overstepped its bounds in areas that speak to public policy. He observed that the previous Legislature was involved in issues regarding changes to the oil tax structure, a gas pipeline proposal and other weighty issues. He did not think the previous Legislature had the three-fourth votes to put forward a constitutional amendment pertaining to the issue of same sex benefits before the people. The legislation would require an advisory vote of the people to have the public discussion; thereby, providing a clear understanding of the people's desire. A special rd advisory election would occur on April 3, 2007, which was selected as the municipal election date for many of the larger municipalities including Anchorage in an attempt to save the State money in putting on another election. He thought the April 3, 2007 date would allow the Legislature time to discuss the issue and act. He maintained that there deserves to be public discussion and the issue needed to be resolved. He acknowledged changing attitudes in the country regarding the issue and questioned if Alaska was ready to follow this trend or maintain the constitutionally adopted definition of marriage. He noted that he was the original sponsor, in 1996, of legislation pertaining to the definition of marriage. He pointed out that the ACLU lawsuit did not have a brief relating to the legislation passed in 1996. AS 18.80.220 (c) provides: Notwithstanding the prohibition against employment discrimination on the basis of marital status or parenthood under (a) of this section, (1) an employer may, without violating this chapter, provide greater health and retirement benefits to employees who have a spouse or dependent children than are provided to other employees. Representative Rokeberg maintained that the Office of the Attorney General has failed the people of Alaska "in terms of pursuing these types of cases and, therefore, it is up to the legislature to assert" its own power and authority to take back from the judiciary its right to make policy for the state. He referred to the ballot proposition on page 2: Shall the legislature adopt a proposed amendment to the state constitution to be considered by the voters at the 2008 general election that would prohibit the state, or a municipality or other subdivision of the state, from providing employment benefits to same-sex partners of public employees and to same-sex partners of public employee retirees? 6:14:01 PM Representative Rokeberg questioned if discussion should occur regarding prohibiting the University of Alaska from providing benefits or if Municipalities should be allowed an optional selection. He noted that the 1996 legislation was a result of the Tumeo versus the University of Alaska case. The Tumeo case gave rise to the first set of the University's regulations and eligibility requirements, which were promulgated by the University and ratified by the Court as a result of court action, not by the people of the state of Alaska. He maintained that the same situation has occurred, eleven years later. The "judges are driving and the people of Alaska are not being listened too". 6:15:28 PM Representative Stoltze suggested the date to allow the issue to be tagged on to municipal elections. He observed that Anchorage's Superintendent Comeau had approached the Division of Election about "tagging" municipal school district issues during state elections on at least two occasions, "given that it is about 40 percent of the population." He maintained that striving to increase voter turnout is a good public policy motivation for the date. He noted that the date would also allow the Division of Elections sufficient time to prepare. He observed that, in the past, the Municipality of Anchorage's school district has compensated the state of Alaska for the cost [to add issues on to state elections] and felt that the state would "turn about" to reimburse municipalities for those costs. Co-Chair Meyer agreed that it would be "legitimate" to tag on to the City of Anchorage's election. He questioned the sponsor's intent regarding an opt-out provision for municipalities and the University that now allows the benefits. Representative Rokeberg acknowledged that an argument could be made that the benefits achieved should not be diminished. He observed the difficulty of making exceptions to the language. He had not reached a decision regarding an opt-out provision. 6:18:37 PM Representative Stoltze observed that all monetary issues come before the Finance Committee. He suggested that it would be a function of the legislature to implement the will of the people, and would have until 2008 to do so. He stressed that the legislation would accomplish the goal of discovering the will of the people. The legislation provides an advisory opinion; an actual constitutional amendment would have a longer process. Representative Rokeberg proposed that the legislation be amended with the addition of "substantially" on page 1, line 13. He suggested that the addition of "substantially" would give the legislature the right to word-smith the amendment. He noted that there would be another session in 2008 to draft the ballot amendment before it is passed. 6:20:59 PM Representative Kerttula asked if the Supreme Court was wrong in their equal protection analysis. Representative Rokeberg noted that he disagreed with the Supreme Court's decision. He felt that legal credence was not given to the voice of the people's action in adopting a same sex prohibition in terms of the marriage definition. He acknowledged that he was not a legal expert. He thought that the privacy clause of the Alaska Constitution might give greater credence to the equal protection argument. He observed that the courts have never allowed the legislature to amend the privacy clause, when in fact the term "by law" is in the constitutional amendment. He concluded that without the full understanding of the legal issues, he would tend to agree with the Court in its analysis; however, he felt that they had wronged the Legislature with their remedy process, which he felt was the biggest problem. He maintained that the Court had reached into the policy making process and observed that the University had eligibility criteria, which was established as a result of the Court's action for 10 years. Due to the Court's action eligibility criteria [for same sex marriage benefits] were drafted by the University and ratified by the membership of the resulting beneficiaries. Now the Court has determined that these criteria, which have been in placed for a decade, are inadequate. He stressed that no credence was given to the voice of the legislature in the past, and cut out the voice of the people as represented by the legislature. He concluded that a constitutional amendment discussion and vote was demanded for clarity. 6:24:36 PM Representative Kerttula expressed respect for the Sponsor. She noted that "once you completely did not agree with the resolution for the remedy. Representative Rokeberg agreed that the issue is complex and that the goal is to find a common ground and that the "clarity of the resolution is to put it on the ballot" with a 2/3 rd vote of the legislature. 6:25:54 PM Representative Kelly worried that the Court had a destination in mind with the decision. He expressed concern that "everything can be made to look normal by lawyers and judges that have a destination in mind." He referred to the $10 million unfunded liability [of the cost of the additional coverage]. He maintained that it is the legislature's purview to decide whether the benefits should be offered. He asserted that the "people spoke clearly and they meant this issue to be included." The legislation would allow the legislature time to deliberate and "give the people of Alaska time to tell them, once more, what they meant in 1998. 6:29:21 PM WHITNEY BREWSTER, (TESTIFIED VIA TELECONFERENCE), DIRECTOR, DIVISION OF ELECTIONS, JUNEAU, addressed the costs associated with conducting an advisory vote election. She observed that an advisory vote on a long range fiscal plan cost $939 thousand in 1999. She noted that the fiscal note assumed that the election would be conducted in person and that contractual services would include: ballot printing, election boards, advertising, shipping and postage, polling place rental and setup, forms, microfilming, $100 thousand for the creation and mailing of an information pamphlet to each household. She observed that costs have increased since 1999; there have been increases to shipping, postage, payment to election workers, and ballot printing. She noted that there could be cost savings if the Division is able to enter into a memorandum of agreement (MOA) with the Municipality of Anchorage to utilize municipal resources during municipal elections. She observed that the Division has held special elections for the Municipal elections, and hoped that they would be willing to reciprocate. 6:32:13 PM Co-Chair Meyer questioned if it were a reasonable request to ask the City of Anchorage to allow the State to "piggy-back" on the municipal elections. Ms. Brewster felt that it would be a reasonable request and pointed out that the State held a special election for the Municipality of Anchorage in 2004 and noted that the Municipality assumed some of the costs associated with that election. Co-Chair Meyer proposed that the bill be moved from Committee with an indeterminate fiscal note. Ms. Brewster was comfortable with that idea. 6:33:44 PM STEVEN JACQUIER, ANCHORAGE, testified via teleconference, spoke against the legislation. He felt the legislation expressed anti-gay sentiment. He maintained that the Constitution requires equal treatment. 6:37:17 PM In response to a question by Co-Chair Chenault, Mr. Jacquier clarified that his children were currently covered through his partner's benefit program. 6:39:11 PM REPRESENTATIVE SEATON, spoke to the case of a Supreme Court's expansion of class of people eligible for benefits under equal protection. He noted that the Alaska Cost of Living Allowance (COLA) gives an additional 10 percent retirement benefit to those residing in Alaska. The Court and Court of Appeals have determined that, based on the equal protection clause, anyone living outside of Alaska can qualify for the Alaska COLA if they have a cost of living equal to Anchorage. There are two paralleled situations in which the Courts are making a decision based on equal protection to expand the class of people that would receive benefits. He questioned if the advisory vote should address all situations regarding the expansion of benefits under equal. He observed that the Supreme Court has not yet ruled on the COLA issue. 6:42:08 PM Representative Rokeberg suggested that "and retirees" be added to page 2, line 5, since there are two different groups that would be affected. He observed that the Commissioner supports the change. 6:43:01 PM Representative Hawker MOVED to AMEND: insert "and retirees" on page 2, line 5. 6:43:41 PM Representative Kerttula OBJECTED. She indicated that her objection pertained to the entire legislation. Representative Stoltze stressed that the legislation would not restrict any broad retiree benefits and is only in regards to same sex benefit retirees. Representative Kerttula pointed out that it would affect retirees with same sex partners. A roll call vote was taken on the motion. IN FAVOR: Stoltze, Foster, Hawker, Holm, Kelly, Meyer, Chenault OPPOSED: Kerttula Representatives Moses, Joule and Weyhrauch were absent from the vote. The MOTION PASSED (7-1). Representative Hawker MOVED to AMEND: insert "substantially" on page 1, line 13 after "ballot". 6:45:26 PM Representative Kerttula OBJECTED. She explained that she was not comfortable without knowing the exact language. Representative Hawker argued that the language would be crafted in the next legislature in a full and open process. A roll call vote was taken on the motion. IN FAVOR: Stoltze, Foster, Hawker, Holm, Kelly, Meyer, Chenault OPPOSED: Kerttula Representatives Moses, Joule and Weyhrauch were absent from the vote. The MOTION PASSED (7-1). Vice-Chair Meyer observed that the fiscal note would be forthcoming from Division of Elections. Representative Foster MOVED to report CSHB 4002 (FIN) out of Committee with the accompanying fiscal note. Representative Kerttula OBJECTED. She observed that rather than identifying the right determination of what makes sense across the board for Alaskans that the legislation would prohibit something. She argued that was the wrong way to approach the issue. 6:49:15 PM Representative Hawker referred to the sentiment of "trusting" the people on issues. He felt that it was appropriate to trust the people to guide the legislature on this very controversial issue, without an empirical answer. Representative Kerttula noted that she took an oath to uphold the Constitution and felt that it was clear on the issue. 6:50:36 PM A roll call vote was taken on the motion to pass the bill from Committee. IN FAVOR: Stoltze, Foster, Hawker, Holm, Kelly, Meyer, Chenault OPPOSED: Kerttula Representatives Moses, Joule and Weyhrauch were absent from the vote. The MOTION PASSED (7-1). CSHB 4002 (FIN) was REPORTED out of Committee with a "do pass" recommendation and with two new fiscal notes: An indeterminate and ADM zero.