HB 171-ACCOMMODATE 90-DAY SESSION  SB 135-ACCOMMODATE 90-DAY SESSION  CHAIR MCGUIRE announced the consideration of HB 171 and SB 135; HB 171 was the working document. 9:05:07 AM RYNNIEVA MOSS, Staff to Representative John Coghill, said an House amendment has the first legislative session starting in January and the second one in February in order to address the lame duck issue. On the floor an amendment was offered to allow telephonic voting, but it failed. Only five people voted for it, she noted. Everything else in the bill remained the same. SENATOR BUNDE asked about the attempt by Representative Gruenberg to add sunset language. MS. MOSS said the House decided to have Legislative Council review the 90-day session and come up with recommendations by 2010 instead of sunsetting the bill. This would address uniform rule recommendations to comply with either the 90-day session or to go back to the 120-day session, she said. 9:07:29 AM CHAIR MCGUIRE said she has a conforming amendment to replace the second Monday in January to February instead. There has been a pattern in practice that is not in conformity with statutes. TAMARA COOK, Director, Legislative Legal and Research Services, Legislative Affairs Agency (LAA) said the reason for it was a concern with the constitutional provision that says that the term for a representative is two years and a senator is four years. In existing law, there is a gap during gubernatorial election years. Some newly-elected legislators will take office a week later than on other years, so unelected legislators would holdover for that time. That occurs under existing law. It is intensified if the session starts on a later date--in February, and that would create a much larger gap for the transition year. The statutes don't speak to holdovers or any terms that are different, she explained. So she got the request to statutorily adjust the terms based on the starting date. The House deleted the notion of beginning the term in February for a regular session. Instead, the terms of office remain the same in the House version now. For the first regular session, the term would begin in January, as they do now, with a delay for gubernatorial years. The draft amendment in front of the committee only would work with existing law. There is a technical problem. Because the House version no longer changed the term of office and the start date of a session, that item is no longer in the title of the House bill. If the amendment were adopted it will require a change to the House-passed version which will be difficult. 9:13:25 AM CHAIR MCGUIRE asked about any other clean-up concerns. MS. COOK said she doesn't see anything. If the Senate or House version passes, the uniform rules will be in conflict, but she assumes that will be corrected. That is not constitutional in nature. It needs a 2/3 vote of each house to amend the title. CHAIR MCGUIRE said, "Then we may want to consider…whether or not the senate vehicle would in fact be amended and sent back over to the other body…with the title change presented." MS. MOSS asked if there is a concurrent resolution. CHAIR MCGUIRE said not yet. If the amendment is adopted, a title amendment and a concurring resolution will be needed. SENATOR BUNDE said either way there is a requirement for a 2/3 vote. This initiative-generated law doesn't change the constitutional requirement for a 120-day session. He asked what happens if the legislature needs to go beyond 90 days. 9:16:48 AM MS. COOK said the courts have not considered the matter so whatever the legislature does will be uncomfortable and fraught with some legal uncertainty. Her hunch is that the constitutional 120-day session trumps the statute as a legal matter. If the legislature gets to day-90 and continues to pass legislation, someone could ask the court to order a restraining order to adjourn. "I do not believe the court system would interfere with a matter of legislative procedure in that fashion at all." The other legal attempt would be to challenge the validity of any legislation passed after the 90 days. 9:18:35 AM SENATOR BUNDE said at midnight of the 90th day, would the presiding officer announce a special session? MS. COOK said the legislature will have two choices. It can adjourn from the regular session, and if it is during the second session the bills will die. Secondly, the legislature can simply go on with its business until day-120, and then it can consider an extension. The legislature will be faced with either terminating a regular session and then taking the steps to go into a special session, which is not easy to do, or wait for the governor to call it into a special session and live with whatever the limited agenda is that the governor imposes. Or it can remain in session, relying on its constitutional authority. If it does, the bills will be deemed to be valid. She based that opinion on the fact that the court has told the state in a couple of cases that it is not going to interfere with matters of legislative procedure. It seems that a determination of when the legislature is going to adjourn from a regular session, which it has a constitutional right to remain in, is very, very central to a question of legislative procedure. Consequently, her best guess is even if the legislature acts outside of the statutory 90-day session, a court will find it to be nonjudiciable based on separation of powers. 9:20:55 AM SENATOR STEVENS said the public wants a 90-day session, and he wants to know where the bill says that. There is language on staff bonuses, "but precious little about how we're going to take 30 days out of the session." MS. COOK said the initiative enacted a statutory 90-day session. It is not yet published in statute, but it is a subsection of an existing provision. But it is the law and it is not amended in either version of the bill. 9:22:19 AM SENATOR STEVENS said it is frustrating that nothing in the bill helps the legislature cut a quarter of its days out of the session. He asked if that will be done with the uniform rules. MS. COOK said not necessarily, but that is probably the most appropriate place address those issues. There are statutes now that address legislative procedure. The bill only changes statute and cannot amend the uniform rules. She said she presumes that if someone wanted, for example, to limit the number of bills that may be introduced, it could be set out in statute as well as in uniform rules. SENATOR STEVENS said they probably should be. There should be statutory solutions for limiting bills somewhere. 9:24:17 AM MS. COOK said that is a policy call if the legislature wants to place restrictions on the total volume of work that flows into the body. There is any number of ways to do that. Neither of the two bills goes to that level of creativity, she stated. SENATOR STEVENS asked why. MS. MOSS said there are reports required from the administration to give the body knowledge in order to conduct business. If changing the session to 90-days, those reports need to come in earlier. That is all the bill does. 9:25:26 AM SENATOR STEVENS asked when those specifics will occur. MS. MOSS said she distributed a chart with timelines. SENATOR STEVENS said he is referring to the other issues. MS. MOSS said the discussion has occurred, and there are memos discussing the uniform rules that need to be changed. It is policy that is up to the legislature. That is a decision to be made in the committee process, she added. SENATOR FRENCH asked if the bill changes the start date of the legislature. MS. MOSS said it changes the date for the second session. The first session starts in January to address the lame duck issue. 9:27:03 AM SENATOR FRENCH said he will offer an amendment to make it a uniform start date. He said there is a potential clash with the AGIA 60-day review period and next year's regular session. "I have great concern that those two are going to intersect, and we will be confronted with a 60-day review period on an AGIA licensee during the time we're supposed to be doing bills and other measures." He asked for a description of what happens when there is a special session that overlaps with a regular session. 9:28:36 AM MS. COOK said there is a difference of opinion on whether it is constitutional to hold a special session while a regular session is still going on. The AG's office opined that the governor could call a special session while the legislature is in regular session to force the topic of the special session. She thinks the governor lacks that authority. There is no suggestion that the legislature has that authority to call itself into a special session during a regular session either. Whether operating under the constitutional 121-day limit or a 90-day limit, they are under consecutive calendar days. A special session would cut out regular session days. If the governor can do that, she can impose her agenda and the legislature could be manipulated to focus on a topic and carve a chunk of the regular session. Even under 120 days, the legislature has difficulty fulfilling all of the jobs it wishes to undertake. "I don't think a special session actually can occur during a regular session…but there is no court case that tells us that that is true." The legislature should adjourn from regular session before going into a special session. If the legislature decides to take up a special topic, it can do it during the regular session-it doesn't have to call a special session unless the point of calling the special session is to prevent the consideration of other matters. 9:31:52 AM SENATOR FRENCH said if the legislature were confronted with an AGIA licensee, it could put its other work aside and consider it as soon a practical. It is important to not to require a special session to do that in. CHAIR MCGUIRE said she thinks the session should start on the same date every year, and it may be a bone of contention between the two bodies. Citizens at her town meeting told her they voted for the 90-day session because it is a citizen legislature and members are supposed to be working and it would be confusing to plan lives around staggered years. If the session starts in January, it's not an issue, but with a February start date the [AGIA review] is more interesting. She said she doesn't know when the licensee will come in. With a staggered year or with session starting in February, "if a licensee came up for approval in January, I suspect then that is when we would elect to call ourselves into special session because we wouldn't be here and we wouldn't be able to act in that 30- or 60-day time period that is currently…. The Senate version required 60 days." 9:34:22 AM SENATOR GREEN said even is there was a presentation of AGIA before the regular session, there could be hearings, just no action. Decisions can be made and then gavel in and vote. CHAIR MCGUIRE said the showdown will be between those members who don't work outside the legislature and those that do. The short session is asking members to have an outside job. "The public has said this is not a career. You have three months to get your work done." The problem is holding meetings that require work into the night and trying to work a job. It could be subverting that intent of the initiative. SENATOR GREEN said that happens now. Very often they'll be downtown in Anchorage and listening to hearings and having different meetings that go way past the 120 days, she noted. 9:36:39 AM CHAIR MCGUIRE said she doesn't disagree. It is the potential communication fallout. She said some people think members should be in Juneau all year. She has never encountered constituents who tell her they will wait and call her when the session is over. They call at any time to address their problems. "I don't know where that communication breakdown has occurred, but it has certainly been my experience that this is a full-time job." If legislators aren't working full time, people think they're not doing their job. "It puts us in a real conundrum." SENATOR BUNDE said, "Those of us in our declining years still like to have a life." One of the ironies of the process and the suspicion people have of their government is that they want a part-time legislator unless they have a problem they want fixed. He noted potential legislation requiring a 30-day notice when calling a special session. "This is more about public impression than it is about any practical reality." He is tempted to say the legislature will carry out smoke and mirrors, and he suspects than in a few years the session will go past 90 days. 9:39:46 AM CHAIR MCGUIRE said she has spent time talking with colleagues in other states. When there is less than 90 days, the trend is more special sessions and the methods of accomplishing the work become more creative. She said she wished there was time to hold a series of public hearings to hear the intent of those who supported the initiative. At a recent town meeting, a man said he wanted elected officials to have equal power and access with the other branches of government. He wanted the legislature to have power to act on his behalf, she said. SENATOR BUNDE said he shared some of his constituent responses with the committee. A number of them had buyer's remorse, he stated. But now that the public has spoken, they don't want an end run around the 90-day session. He hopes the body limits itself and tells people no. Then in five or six years, people may change their minds. It is important to let the public know there are consequences, he said. One consequence may be that the public has less access to members when they are in session. 9:42:59 AM CHAIR MCGUIRE said she was in law school in Oregon, which made active use of the referendum process. Her class decided to do a nation-wide symposium on that process. The conversations followed along the lines of "be careful what you ask for." A representative government has its reason, including the hearing process and multiple referrals so that there is time to vet out…. She said all members have offered bills that seemed like a good idea. The initiative process is a quick synopsis, and some people don't even read it. Oregon members believe that the initiative process has resulted in a constitutional patchwork with contradictions. More and more, Alaskans are using the initiative process to enact the will of some. 9:46:10 AM SENATOR GREEN noticed the staggered start dates on line 17 and asked, "Why aren't we beginning on one day?" CHAIR MCGUIRE said she and Senator French agree, and she asked Ms. Cook for an amendment that would have one start date. SENATOR STEVENS said he agrees, but he would like another explanation of the lame duck issue. MS. MOSS said it already occurs on gubernatorial years, which start a week later. The constitution says that a term is either two or four years, so terms expire prior to the swearing in. If legislators are "sworn in on January 12, and session doesn't start until February 8, you have almost a month where theoretically you have no house members and you only have half the senate that still have their terms active." 9:49:06 AM SENATOR GREEN said amendment K.a1 would take care of it. CHAIR MCGUIRE said that was the point. There was testimony that even though there is this gap in the constitution, the legislature itself, through the LAA, conducts itself as if it doesn't exist. She asked if the amendment clears that up. MS. COOK said nothing in statute clears up the constitution. It is her opinion that the constitution says when the term begins, but there is the opportunity for the legislature, by law, to change the date of convening. "We have set, by law, a date for convening, and it doesn't happen to be the very same date every year right now." There is also the provision that a term is two or four years, so it seems that a court confronted with a special session when there are no legislators in office…will reach the same point that the LAA has reached and imply a holdover period. Her hunch is that no court will find that there are no representatives and only half the senate. The lame duck concern is the gap between the election and swearing in of members. "To the extent that we hold our session further away from the general election, we have a longer period during which the individuals in office will not represent, necessarily, the individuals who have been most recently elected." That may be one source of unease, she stated. 9:52:49 AM CHAIR MCGUIRE said starting in January eliminates it. MS. COOK said that would be the same as current situation. The other concern is getting information from the Department of Revenue to use to craft budgets. The session would end too soon to get the benefit of the best revenue estimates. The House decided not to change the starting date, but every two years get the better estimate. It was an interesting and creative solution on their part, she stated. She has never heard discussions of starting a week later in January. It might be worth checking with the Department of Revenue, she said, to see if a few weeks makes a difference to it. 9:55:25 AM SENATOR BUNDE said the consistent thing about the revenue forecast is it is always wrong. MS. MOSS asked Ms. Cook if the amendment passed and the legislature met on the second Monday of February, would the term of newly-elected members begin in January for a special session? MS. COOK surmised that if a special session is called before the members are sworn in, it would be the old legislators. 9:56:54 AM SENATOR BUNDE said that happened last year. CHAIR MCGUIRE said the fourth special session had 12 [outgoing] people. The sky didn't fall, but she recognizes the concern. HB 171 and SB 135 were held in committee.