SB 39-BALLOT PROPOSITIONS AND TITLES  CHAIR THERRIAULT announced SB 39, sponsored by Senator Elton, to be the first order of business. He noted the blank committee substitute (CS) and asked the sponsor which version he would speak to. SENATOR KIM ELTON, prime sponsor, replied he would speak to the blank CS and motioned to adopt \F version SB 39 as the working document. There being no objection, it was so ordered. 3:49:32 PM Last year, he explained, more time was spent talking about the specific language describing a few ballot initiatives than was spent on the underlying policy. SB 39 is an effort to get beyond that and de-politicize the process through the creation of a five member advisory panel. The lieutenant governor would appoint two proponents of the initiative or referenda and two opponents. The lieutenant governor would also appoint a fifth and neutral member from a slate that was prepared by the Chief Justice of the Supreme Court. With help from state attorneys, the committee would prepare the impartial ballot title and proposition. In addition, timelines would be established so that deadlines that are inherent in any initiative process don't become an issue The constitution is clear that the lieutenant governor will prepare the ballot language so nothing in SB 39 forces him or her to use the language the panel develops. It does, however, provide that if different language is used he or she would outline why the language is different in the pamphlet that is sent to all Alaska voters. He stressed that the genesis of the bill goes back beyond the previous election to when he was the chief policy advisor to former Lieutenant Governor Terry Miller more than two decades ago. I can tell you that the most difficult issues that were dealt with in that lieutenant governor's office - and I suspect in each of the subsequent lieutenant governor's office - is how you do the ballot language because the automatic assumption of voters is that if the ballot language is coming from an elected official who is elected on a partisan basis - automatically people have filters that go up. Especially the people who may be behind the initiatives - and it is very difficult to get beyond this. This is a way, I think, that helps lieutenant governors because it can de- politicize that ballot language issue. CHAIR THERRIAULT noted that the court likes to maintain a bright line so he was curious whether any discussion had taken place regarding the court participating in what could be the swing vote on language it might ultimately pass judgment on. SENATOR ELTON replied he hadn't had any direct contact, but the model is used in other instances such as the Legislative Ethics Committee. Certainly the court wouldn't want to select a proponent or an opponent, but he thought the court would want to avoid "any suggestion of bias that would kick the work on drafting ballot language into their system." CHAIR THERRIAULT referenced the Legislative Ethics Committee and said the court has made it clear that it wouldn't act as a super parliamentarian and interject itself into the operation of a separate branch of government. A better example, he suggested, would be re-districting. Those plans always end up in the court system, he said. SENATOR ELTON replied it's a close and interesting question and he thought the court would see it as a balance. If suggesting a slate of potential advisory panel candidates reduces the possibility of the court ending up with the ballot language issue in their laps, the court would probably view that effort as a savings of time and litigation costs. He said he wanted to correct a part of the sponsor statement related to cost of printing last year. Media reports indicated the cost of ballot printing was about $300,000, but the costs were actually in the neighborhood of $240,000 to $245,000. SENATOR THOMAS WAGONER said he understood the intent, but it comes down to the fact that the lieutenant governor could ignore statute and proceed with his or her own language anyway. SENATOR ELTON agreed the constitution, which grants final authority to the lieutenant governor, trumps statute. However, SB 39 sets up a process to create ballot language and in the future he suspects lieutenant governors will be thankful that the process is not seen through a partisan filter. There's a strong possibility that the lieutenant governor will trump the language developed by the advisory panel at some point in the future, but that probably won't happen often. 3:58:36 PM SENATOR CHARLIE HUGGINS asked if it means a separate committee for each initiative. SENATOR ELTON replied there would be potential for multiple committees. SENATOR HUGGINS suggested this could be an administrative nightmare and that he's sure that Lieutenant Governor Leman learned a great deal during this last election cycle. Sometimes corrective action is more evil than what transpired, he said, and any time the court becomes involved it opens Pandora's box. SENATOR ELTON said his brief response is that there is certainly an associated learning curve and most elected officials learn from experience. More than likely the present Lieutenant Governor Leman is more sensitive to the issues than he may have been two years ago, but future lieutenant governors will also be faced with a learning curve. "The worst thing that could possibly happen is for arguments about ballot language to get into the judicial system. That, I think, is a bigger problem than having a judicial officer appoint one of five people to try and prevent that." It shouldn't be viewed as constraining the behavior of the lieutenant governor because the constitution doesn't allow that, but this approach to ballot language can constrain the behavior of initiative sponsors. It would make it more difficult for initiative sponsors to go to court and argue about ballot language that was approved by a non-partisan and balanced committee. SENATOR HUGGINS commented he isn't warm to the idea of committees looking after the lieutenant governor. CHAIR THERRIAULT read page 2, lines 5,6, and 7 and said it means the lieutenant governor may choose to make adjustments that are allowed by the statute. It doesn't mean that he or she may ignore the statute. He noted the language appears on that page as part of AS 15.45.180 then at the top of page 3 as part of AS 15.45.410 and on the bottom of page 3 as part of AS 15.50.010. He questioned why the language is repeated in statute three times. 4:03:12 PM SENATOR ELTON replied he believes it was an effort to make the different components of the election statutes reflect the same notion. He asked his staff to confirm that. JESSE KIEHL, staff to Senator Elton, elaborated explaining the first reference amends the initiative laws, the second the referendum laws and the third reference amends the laws on constitutional amendments. 4:05:12 PM CHAIR THERRIAULT asked whether he had anything else to add. MR. KIEHL replied Senator Elton addressed all the primary points but a point to emphasize further is clear and early deadlines for work done on ballot titles and propositions. "While the bill is intended to reduce the likelihood of lawsuits, certainly if something should ... go to court, there is adequate time for the courts to address the question." CHAIR THERRIAULT asked about the suggested date changes. SENATOR ELTON said he would ask Mr. Keihl to explain that and members could reference the document on deadlines found in the packets. MR. KIEHL explained the original version of the bill created deadlines that counted backward 70 and 80 days from Election Day to give the Division of Elections time to print ballots even if there were a court challenge. During review they found that existing statute for constitutional amendments says that within 30 days after a legislative session in which a constitutional amendment is proposed ends, or 30 days after a constitutional convention in which an amendment is proposed ends, the lieutenant governor must prepare the title. The CS says, "30 days after the legislature last had a crack at it, the committee must meet and do its work and the lieutenant governor approve." The timeframe for referenda is shorter so the timeline for the ballot title must be shortened to get everything to the Division of Elections in time to print the ballot. That limit is not later than 21 days after the date the petition is filed. Instead of the 10-day timeframe the lieutenant governor is given to make any necessary changes for initiatives and constitutional amendments, the lieutenant governor is given 5 days for referenda. The reasoning is that when referenda can be voted on in the same year that the signature is filed, the timeframe is tight. 4:09:55 PM CHAIR THERRIAULT noted a number of people wanted to testify. SENATOR ELTON mentioned the two zero fiscal notes. CHAIR THERRIAULT acknowledged the fiscal notes and called on Mr. Feldman from an off net site. 4:11:17 PM JEFF FELDMAN advised he was part of the recent litigation involving the ballot language and when he first heard of SB 39 he wasn't sure whether it was a good fix to the problem. Ultimately he came to view the measure as non-partisan legislation. He made the point that this is a recurring issue in the state and that a number of lieutenant governors have been defendants in lawsuits brought because of action they may have taken. Certainly, Lieutenant Governor Leman's situation last year was not unique and most lieutenant governors have had to struggle with this issue. He suggested two issues were worth consideration. First, the present system is expensive and isn't limited to reprinting costs. Litigation expenses are likely to be in the high six figures. The second point is that the current system makes everyone associated with the process look bad. Referencing the comment made about not wanting a committee to make decisions about ballot language, he said that is the current system. The lieutenant governor doesn't appoint the committee; "ultimately five people wearing black robes got to decide what the language had to be." Although committees don't move as fast as the individual, they do move more efficiently and less expensively than the process used last year, he asserted. This process would also give any lieutenant governor help and guidance and make it more likely that language that is settled upon would be impartial, accurate, and the product of both sides of an issue. Currently, once the lieutenant governor decides on the language, proponents of the initiative have no opportunity for review ahead of time and no opportunity to communicate with the lieutenant governor as to whether they like or don't like it. This suggested fix is worth serious consideration, he concluded. SENATOR WAGONER noted that legislation passed last year relating to the initiative process should slow the number of initiatives going to ballot, but he didn't think this measure would keep the initiative process out of the court system. "When you've got two sides arguing the issue, I think you're going to end in court 90 percent of the time anyway," he remarked. 4:18:44 PM CHAIR THERRIAULT asked Joe Geldhof to come forward. JOE GELDHOF, Juneau attorney, said he was testifying on behalf of himself and that he does have some initiative experience. He urged members to develop a CS because there are some meaningful points that would be useful to the lieutenant governor in the initiative process. He found Lieutenant Governor Leman's office to be completely professional when he dealt with it on the cruise ship initiative. Nonetheless, providing both proponents and opponents an opportunity to preview the language to be selected, as proposed in SB 39, could give the lieutenant governor the ability to receive feedback quickly and to gain a feel for how the language might be received. Otherwise you end up with language that comes through the lieutenant governor's office, but frequently from the attorney general's office and "It's often cobbled together in a hasty fashion without full regard to what's really going on." Finally, he urged members to consider a CS that has a short review process so an opponent and a proponent vet the lieutenant governor and the attorney general summary before the booklets are printed and released to the public. That might avoid the temptation to litigate after the booklets are collected and provide opportunity for a better end product. 4:22:38 PM SENATOR HUGGINS asserted that unfortunately, "ballot initiatives all too often are hyperizing and polarizing by their very nature." MR. GELDHOFF replied he really isn't a fan of the initiative process and he views initiatives as the result of legislative gridlock. SENATOR HUGGINS suggested this could result in greater protraction. MR. GELDHOF replied it could happen that way but, "give the lieutenant governor at least a limited chance to have a little input from the people out there hammering on it.... give the lieutenant governor a shot of what's right and wrong with the language." 4:25:40 PM CHAIR THERRIAULT agreed that in the past people have gotten thousands of signatures on language to laws that were structurally flawed. Sometimes the petitioners knew it was flawed and suggested they would fix it after the fact. He said it seems as though the argument is centered more on the language that describes the law than the language that is proposed for the statute books. When you look at the proposed summary statement that isn't the law itself, he said. MR. GELDHOFF agreed then said that the public really has an amazing capacity to know what's going on. The Legislature has an obligation to make it as clear as possible and then let the public do what they're going to do. "Let people like Mr. Feldman come up with a better work product." CHAIR THERRIAULT said he was thinking about the property tax issue from three or four years ago. The proposed law was flawed and didn't work. You could argue about the summary statement on the booklet and you could argue about the summary on the ballots, but the process doesn't provide for a check on the proposed law itself to make sure it works. MR. GELDHOFF replied initiatives are just the direct enactment of legislation so the same standards should be used that you as the presiding officer of a committee would consider. CHAIR THERRIAULT said they don't always get it right as a committee, but they have the committee process, Department of Law attorneys, legislative attorneys, Majority members, and Minority members. Each provides a set of eyes coming from a different perspective and looking for mistakes. By contrast what is approved for initiatives has frequently been reviewed from just one perspective and the summary may not be accurate. 4:29:55 PM SENATOR ELTON said perhaps the committee should consider a CS to include the summary language for petitions. With regard to the property tax initiative, he said it wasn't an issue of what was said on the summary or what would have appeared on the ballot, but it could have become an issue because there was a structural flaw to the law they were proposing. A committee could have addressed the issue by saying, "This doesn't do what it says it does." CHAIR THERRIAULT asked Annette Kreitzer to come forward. ANNITTE KREITZER, chief of staff for Lieutenant Governor Loren Leman, said she would speak in generalities since she hadn't seen the sponsor statement or the proposed CS. She said she distributed pages from Lieutenant Governor Leman's web site titled "Understanding Initiatives" because it includes timelines of action on initiatives. Furthermore: Lieutenant Governor Leman believes the initiative process is an important part of Alaska's political system. It allows Alaskans direct access to writing and approving certain laws without going through the legislative process. SB 39 isn't necessary. Any lieutenant governor walks a fine line between proponents of an initiative and the opponents. As far as my experience goes, we've received comments on both sides of almost every initiative. The lieutenant governor takes input from many including the Department of Law. We don't operate in a vacuum. Under SB 39, the lieutenant governor still can change the committee's recommendation and I'm sure, as others have said before me, that that's in the bill because to do otherwise would likely render the bill unconstitutional. MS. KREITZER took issue with Mr. Feldman's statement that opponents and proponents do not have an opportunity to comment. The initiative he was referencing came at the same time that legislation was being passed so Lieutenant Governor Leman was very involved. When he was asked about that legislation he said it was substantially similar to the proposed initiative. Three days prior to printing the special advance ballots the court ruled that the initiative would have to go on the ballot. In terms of timing she made the point that if you're vulnerable to a lawsuit at any point you wouldn't be able to meet the timelines set forth in the bill. "The bias is in the eye of the beholder. Proponents don't think we're doing enough to advance their initiative and opponents don't think we're doing enough to outline perceived flaws in an initiative." Current law allows judicial review and judicial review would also be available under SB 39. The proposed five-member committee wouldn't have fewer biases than an elected lieutenant governor and an appointed attorney general, she concluded. 4:34:52 PM CHAIR THERRIAULT referenced the fiscal notes and asked Senator Elton who would pay the committee expenses as far as travel and per diem. SENATOR ELTON replied he anticipates some travel costs because it's likely that the committee would have to meet face-to-face at least initially. He suggested that little investment up front would save a lot of money later on. CHAIR THERRIAULT noted the fiscal notes from the Division of Elections and the Department of Law and asked if he envisions that the expenses would be covered from the lieutenant governor's budget. SENATOR ELTON replied it could happen that way. During an election cycle a lot of the lieutenant governor's staff time is used on issues such as ballot language, temporary hiring, and voter pamphlet contracting. He anticipates that it would be part of the biannual cycle for budgeting for elections. CHAIR THERRIAULT questioned whether they would have to plan for additional costs. SENATOR ELTON replied expenses would probably be slightly higher. Expenses would depend on the number of initiatives and perhaps the volatility of some of the initiatives. In conclusion he emphasized that it will be easy to identify costs to accomplish SB 39 but impossible to identify the accrued savings. There was no further testimony or questions. CHAIR THERRIAULT announced he would hold SB 39 in committee.