SB 23-INITIATIVE SEVERABILITY  1:58:38 PM CHAIR HOLLAND announced the consideration of SENATE BILL NO. 23 "An Act relating to proposing and enacting laws by initiative." [SB 23 was previously heard on 4/19/2021.] 1:58:56 PM At ease 2:01:45 PM CHAIR HOLLAND reconvened the meeting. 2:02:16 PM SENATOR JOSH REVAK, Alaska State Legislature, Juneau, Alaska, speaking as sponsor, paraphrased 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. 2:03:30 PM 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 Governor's 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. 2:04:09 PM 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. 2:05:34 PM SENATOR REVAK thanked members for their attention and willingness to hear SB 23. 2:05:57 PM SENATOR HUGHES asked the sponsor to review the history of this bill. She wondered if the late Senator Chris Birch had previously brought this bill before the body during the last legislature. She stated her support for SB 23. 2:06:31 PM SENATOR REVAK responded that then-Senator Chris Birch, now deceased, introduced Senate Bill 80, which passed the Senate in the 31st Legislature. He said he sponsored the bill this legislature because it is an important matter. 2:07:14 PM CHAIR HOLLAND asked whether SB 23 was identical to Senate Bill 80. SENATOR REVAK answered yes. 2:07:20 PM SENATOR HUGHES offered her view that to be true to the voters, the language for the ballot initiative at the general election should be the same as the language presented when the registered voter signed the ballot initiative pamphlet. She appreciated that Senator Revak continued working on the severability of ballot initiatives by introducing SB 23. 2:08:11 PM CHAIR HOLLAND related his understanding that a memo from Legislative Legal Services dated April 23, 2019, was in members' packets. He asked the attorneys to respond. 2:08:33 PM ERIC FJELSTAD, Partner, Perkins Coie, LLP, Anchorage, Alaska, deferred to Mr. Klein to respond first. 2:08:41 PM NOAH KLEIN, Attorney, Legislative Legal Counsel, Legislative Legal Services, Legislative Affairs Agency (LAA), Juneau, Alaska, reviewed the initiative process set out by art. XI of the Alaska Constitution. The process starts with an initiative application filed with the lieutenant governor once signed by 100 sponsors. After conducting a legal review, the lieutenant governor can certify the application. Once certified, the initiative must meet specific signature requirements, and if satisfied, the initiative would be placed on the ballot to be considered at the next general election. 2:09:31 PM CHAIR HOLLAND asked whether he could compare the initiative process to the legislative process. He related his understanding that one process must not be more restrictive than the other. 2:09:50 PM MR. KLEIN explained the procedural differences. Bills and resolutions go through the legislative process and must be voted on and passed by both bodies. He characterized the initiative process as being vetted by the lieutenant governor and potentially the court before being placed on the ballot for voter approval or denial. CHAIR HOLLAND asked whether he was familiar with a Legislative Legal Services memo of 4/23/2019 from Alpheus Bullard, Legislative Counsel to Senator Kiehl, relating to a constitutional issue raised by Senate Bill 80. 2:10:55 PM CHAIR HOLLAND read from page 3 of the legal memo "Under SB 80, the people would not be able to exercise through the initiative, the same law-making power as the legislature." He referred to page 2, paragraph 1 related to the rules governing initiatives. It asserts that the initiative process may not be more restrictive than the [rules governing] the law-making power of the legislature. The subsequent language contains statutory language. "AS 01.10.030 specifically provides that provisions may be severed from a bill enacted by the legislature...." He stated that SB 23 addresses the severability of a bill before it is enacted. He asked if severability of a bill enacted by the legislature was comparable to severance before an initiative is enacted. 2:12:17 PM MR. KLEIN referred to line 5 of SB [23], prohibiting a severability clause. It read, "An initiative petition may not contain a severability clause." He said it would essentially prohibit an initiative from having that same clause provided by AS 01.010.030 that is included in all legislation adopted by the legislature. 2:12:47 PM SENATOR KIEHL offered his view that the legislature operates under more restrictive rules than the initiative process since the legislature cannot obtain a ruling from the courts before voting and passage of a bill. Yet, in the ballot initiative process, the people have a better opportunity because they cast their votes after the court rules on the constitutionality if a lawsuit ensues. Therefore, the severability of initiatives benefits the voter. SENATOR HUGHES characterized this as comparing apples to oranges. She related her understanding that if a portion of an initiative is found unconstitutional, it does not stop the remaining language from going forward. The bill would require the initiative sponsors to go back and recollect signatures. However, it does not prevent an initiative from being placed on the ballot and becoming law. She concluded that the bill was not prohibitive or restrictive. She emphasized that when a person signs something, they agree to it in totality. She offered her support for SB 23. 2:14:48 PM SENATOR REVAK stated that the intent of the bill was not to hinder the initiative process for voters. Suppose the initial paragraph of an initiative sounds compelling, and they sign the petition, but that language is later found unconstitutional and removed. In some cases, the final initiative on the ballot, once the unconstitutional language is removed, would be completely different than the initiative the registered voters signed. It's also conceivable that initiative sponsors might deliberately craft their language in anticipation that the courts will find it unconstitutional. SENATOR REVAK noted that a lot of money is involved in the initiative process, that people make money gathering signatures on ballot initiatives, often at box stores. 2:16:18 PM SENATOR MYERS responded to the timing when the courts weighed in on an initiative or for bills passed by the legislature. He did not view SB 23 as making the initiative process less restrictive than the legislative process. In terms of the legislature, when the legislature passes a law, and the court rules a portion of it unconstitutional, the severability clause allows the remainder to become law. Suppose an initiative is voted on and enacted. If someone sued after the fact and prevailed, the initiative could be severed. SB 23 would prohibit severing the language at the critical juncture in the initiative process after registered voters sign the petition but before they subsequently vote on the initiative. 2:17:19 PM CHAIR HOLLAND described the legislative process. When the Senate passes a bill, it goes to the House for consideration. If the House makes any changes, it must be returned to the Senate for concurrence. He offered his view that it should be the same for an initiative. Suppose the initiative sponsors collect signatures on one proposal, but the proposal is changed [by the court]. In that case, the sponsors may need to reaffirm the registered voter's approval on the revised language. 2:17:54 PM SENATOR KIEHL offered to provide a better comparison. Suppose a bill was reported from the Senate Judiciary Committee with his "do pass" recommendation. He noted a bill must have at least one "do pass" recommendation to make it to the floor. If the Senate Finance Committee changes the bill, the bill will not go back to the Senate Judiciary Committee for him to re-evaluate it. His only option will be to consider the new language when the bill comes to the floor of the Senate for a vote. Comparably, when a voter signs a ballot initiative and the court removes unconstitutional language, the voter has an opportunity to reconsider the revised ballot initiative when the proposition is on the ballot at the next general election. 2:18:46 PM MR. FJELSTAD stated that he became involved with this issue when the late Senator Birch raised concerns about the initiative process. He explained the genesis of Senate Bill 80. He pointed out the two constituencies: the registered voters who sign an initiative petition and the legislature's role. First, an issue of truth in advertising arises when voters sign a ballot pamphlet thinking they agree to 1, 2, 3, and 4. The legislature should give credence to it and not assume that if the court strikes item 4, it would be inconsequential to the voters. Second, the legislature's role arises under art. XI sec. 4, which reads, "...If, before the election, substantially the same measure has been enacted, the petition is void." This essentially means if the legislature enacts something similar to the language in the initiative, it will stop the initiative process. He characterized this as a fundamental right and role of the legislature. However, he acknowledged that it has been difficult historically to enact something similar due to politics. Thus, most initiatives are not cut off and proceed. MR. FJELSTAD highlighted that if the court takes the worst provision and severs it from an initiative, it could completely alter the political situation. The legislature might decide it could enact something similar. He explained that severability does not allow it. Under the current process, if the legislature considers ballot initiative version A, and the court finds a provision unconstitutional, it becomes a different ballot initiative version B. He related that version would not come back to the legislature for consideration. 2:21:39 PM MR. FJELSTAD stated that the two drivers are the legislative review and truth in advertising. If the court finds a portion of a ballot initiative unconstitutional, the process must be restarted to allow the legislature to review the language that will go before the voters, not some version that the courts rewrote. 2:22:03 PM MR. FJELSTAD turned to the statute mentioned earlier [AS 01.10.030]. He opined that the Alaska Constitution is higher than the statute that applies to the legislature passing laws. Finally, he suggested that there isn't any disincentive for initiative sponsors to draft language constitutionally. Instead, initiative sponsors continually overreach and rely on the courts to fix it. He predicted that this practice would continue, leading to more initiatives with constitutional defects. He suggested the remedy [in SB 23] is to require initiative sponsors to start over if the courts find some initiative provisions are unconstitutional. 2:23:20 PM SENATOR KIEHL stated that historically, the courts have struck down some or all provisions of bills passed by the legislature. He asked what provides any disincentive for the legislature to pass bills with an unconstitutional but "flashy" part and just let the courts figure it out. 2:23:52 PM CHAIR HOLLAND offered to refine the question. He stated that SB 23 relates to the placement of a severed initiative on the ballot, which implies that the initiative is not yet enacted. He asked whether it was appropriate for the court to rule on the law's constitutionality before it became law. SENATOR KIEHL said that was a good question but a different one. 2:24:22 PM MR. FJELSTAD offered to respond to Senator Kiehl's question. He said the legislature has the authority to enact laws that may or may not be constitutional. The legislature established a process to address this: if a portion of the legislation is found unconstitutional, those provisions should be severed, and the remaining ones become law. MR. FJELSTAD stated that the genesis of an initiative is different since the people initiate the process, not the legislature. Second, the constitutional check vested with the legislature provides the legislature an opportunity to enact something that is substantially similar. He remarked that initiatives challenge the process because they are costly. The goal of SB 23 is to restore the checks in the process so that the initiative the legislature reviews is the one that will go before the voters, not some other version. Further, the legislature retains the option to pass something substantially similar and halt the initiative process. 2:26:08 PM CHAIR HOLLAND asked if the legislature omits a section of the initiate, whether it would be considered substantially similar. MR. FJELSTAD responded that the lawyers could debate what that means since there isn't a lot of authority on substantially similar. He said he considers it from a common-sense perspective. If the legislature reviews an initiative that members concluded would enact poor policy, it would be difficult for them to enact something substantially similar. He suspected that was why most efforts to cut off an initiative don't happen. However, if the potentially unconstitutional language is removed, it could create a different political dynamic, and there might be a will of the body to enact something. 2:27:23 PM SENATOR KIEHL said he appreciated Mr. Fjelstad's concern for the legislature's political considerations, but the point of the bill is focused on constitutional considerations. He said he had heard phrases like a "completely different enactment" He asked what the courts consider a stricter standard, "substantially similar," or "unconstitutional," so the language must be struck down. He related his understanding that "substantially similar" means that the legislature cannot "turn the language 100 percent upside down." He suggested that the two attorneys could help members better understand this. MR. FJELSTAD deferred to Mr. Klein. 2:28:28 PM MR. KLEIN responded that he has not analyzed whether the court's two tests would provide a broader or narrower standard. He was unsure whether the court had ever explicitly compared the two tests. The two tests the court applies are the same ones the court applies when reviewing "substantially similar" legislation enacted by the legislature to prevent an initiative from being placed on the ballot. He cautioned that this is different than the test the court applies when determining whether or not unconstitutional provisions can be severed. To apply the substantially same test, the court must first determine the scope of the subject matter or if the legislature has greater or lesser latitude, depending on whether the subject matter is broad or narrow. Next, the court must consider whether the general purpose of the legislation is the same as the general purpose of the initiative. Finally, the court must consider whether the means by which that purpose is effectuated is the same in both legislation and the initiative. Again, that's the test for determining whether legislation adopted by the legislature is essential under art. XI, sec. 4. 2:29:41 PM MR. KLEIN said in the cases that the court has severed provisions of an initiative, it applied a three-part test based on the Alaska Supreme Court decision in McAlpine v. University of Alaska. He paraphrased a portion of the decision: "... when the requisite number of voters have already subscribed to an initiative, a reviewing court should sever an impermissible portion of the proposed bill when the following conditions are met: (1) standing alone, the remainder of the proposed bill can be given legal effect; (2) deleting the impermissible portion would not substantially change the spirit of the measure;[26] and (3) it is evident [*95] from the content of the measure and the circumstances surrounding its proposal that the sponsors and subscribers would prefer the measure to stand as altered, rather than to be invalidated in its entirety. 2:31:11 PM SENATOR KIEHL stated that it makes the point that a completely different measure cannot be taken before the voters. 2:31:22 PM At ease 2:31:40 PM CHAIR HOLLAND reconvened the meeting. He asked the attorneys if the legislature's right to review initiatives under the Alaska Constitution, art. XI, sec. 4 supersedes art. XII, sec. 11. In other words, he asked whether art. XII was subject to the limitations of art. XI. 2:32:18 PM MR. KLEIN said he was unsure. Further, he was unsure whether the court had ever addressed it. The Alaska Constitution, art. XII, Sec. 11 question was relating that the legislature can simply say that the initiative can't contain a severability clause. The analysis in McAlpine v. University of Alaska also implied the people's right to legislate via initiative includes severability. It includes the benefit that the court will sever rather than force the sponsors to go through the process again. While McAlpine was applying a narrow test for severability when an initiative meets that standard, the court is advocating for that to happen. It's saying that the people's right is worth justifying. It lends to the possibility that the people, the sponsors, have a constitutional right included in the right to initiate to have an initiative severed. 2:33:49 PM CHAIR HOLLAND held SB 23 in committee.